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Lord Dholakia moved Amendment No. 75A:
- Page 68, line 3, after "act" insert "for gain"
The noble Lord said: My Lords, again I shall be brief. We pursued these matters in Committee. The amendment is supported by a number of immigration agencies. Its purpose is to ensure that persons are guilty of the offence of assisting unlawful immigration only if they do so for gain.
We are concerned that there is no requirement in the provision to show that the act must have been committed for gain. If the provision were amended to include a necessity to show that the offence was committed for gain, inadvertent breaches as well as benevolent assistance would not be penalised. However, it is important that a distinction is made between those who facilitate the entry of another person for gain and those who do so for other reasons, such as humanitarian reasons, or who perhaps do so inadvertently .
In Committee, the noble Lord, Lord Filkin, gave the example of a woman who 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.
The Government's example does not grapple with the fact that a person might be facilitating the entry of a person into the UK for humanitarian reasons. Furthermore, this does not reflect Article 27 of the convention implementing the Schengen agreement, which clearly states that the penalties should be imposed on persons who assist unlawful entry,
- "for the purposes of gain".
There is also the problem of proving an offence. In the Commons the Government suggested that magistrates would obtain a certificate from a court in the relevant member state in order to determine whether a breach of immigration law has occurred. In Committee, the Government suggested that the certificate would be issued by the government of the
member state in question. Have the Government any further thoughts on the question of the certificate? I beg to move.11.15 p.m.
Lord Filkin: My Lords, again, I regret that we cannot accept the amendment. There is a significant difference between the Government and other noble Lords on the issue. It is an offence for a person subject to immigration control to enter the country illegally. It is also an offence to remain after one's leave has expired or to use deception to obtain further leave. That is a fact. It is currently an offence to be knowingly concerned in making or carrying out arrangements or securing or facilitating either offence, whether or not that is done for gain. That should continue to be the case: where someone knowingly assists another person to commit an offence, the first person should be liable to prosecution.
I entirely accept that where the motive for assisting someone to commit a breach of immigration law is a reason other than for gain—for example, the person with her boyfriend in a suitcase—a penalty of 14 years may be inappropriate. But 14 years is a maximum penalty and the Government are not in favour of using maximum penalties in the legislation as triggers for other penalties. It is not a mandatory penalty; the penalty is for the courts to decide, having regard to all the circumstances of the case.
Where someone has deliberately helped another person to enter the country illegally for reasons of family loyalty or because they object in principle to the concept of immigration control, it will be for the courts, not the Government, to decide what penalty is appropriate. But I do not accept that such conduct should not be an offence in the first place. We can envisage what might result were that to be the case.
It is true that the "for gain" limitation applies to the offence of helping an asylum seeker to arrive in the United Kingdom, but it was pointed out in Committee that an asylum seeker can arrive in the UK and claim asylum without breaking any law. In the circumstances, the "for gain" limitation is a necessary safeguard to protect those motivated by humanitarian considerations, while allowing us to act against people who are involved in trafficking, as we clearly want. However, I must tell the House that the need to demonstrate that someone has acted for gain has frequently proved an obstacle to bringing a prosecution when we believe that one should have been brought.
I should also point out that, were the amendment to be carried, we should not be able to comply with our obligations under the European directive on the facilitation of unauthorised entry, transit and residence or the associated framework decision. It is true that paragraph 27 of the Schengen agreement is limited to action for gain, but that paragraph is set to be replaced by the directive, Article 1 of which requires each member state to adopt appropriate sanctions on any person who intentionally assists any person who is
not a national of a member state to enter or transit across the territory of a member state in breach of the laws of the state concerned. That is an absolute requirement; it is not limited to cases in which that is done for gain.It is late; I invite the noble Lord to consider whether he wants to press his amendment.
Lord Dholakia: My Lords, I thank the Minister and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Avebury moved Amendment No. 77:
- After Clause 130, insert the following new clause—
The noble Lord said: My Lords, it is unfortunate that we reach the question of trafficking in persons at such a late hour, when it deserves the full attention of your Lordships' House, not just that of the few Members who remain. The offence of trafficking in persons has received the attention of the United Nations. As the Minister will know, there is a definition in the UN protocols to prevent, suppress and punish trafficking in persons, especially women and children. That definition has been endorsed by the European Union framework decision on combating trafficking in human beings.
First, we seek to import that definition into the Bill. Although Clause 130 is a stop-gap measure, we do not see why the opportunity should not be taken to align the definition in our statutes with what has been universally accepted by international authorities—especially when the Government have assured Anti-Slavery International in a letter of 1st May that they are:
The opportunity is also taken to remove the words "for purposes of gain". That would mean that a trafficker could be prosecuted if the police could prove that he had coerced or deceived somebody into prostitution, regardless of whether it was possible to establish that the person concerned had done so for his direct benefit. Having to prove that a person who used force or coercion also materially benefited from doing so would be a significant obstacle to achieving a successful prosecution.
Our second amendment in this group relates to the protection of victims' rights, a matter that we discussed in Committee. I think that we agreed that, if a person did not have a period of reflection, the police would have great difficulty in securing the witnesses needed for prosecutions. More fundamentally, the traumatised victims who might be sent back to their country of origin would not have the benefit of the services of specialised agencies. They would not have the opportunity to recover from their experiences and receive advice and support in making an informed decision about whether to co-operate in the police investigation of the offence. Given the risk to the lives of victims and their families in their country of origin, that is of fundamental importance.
A specialised agency could provide support services, including secure accommodation, information in a language that they can understand, medical and/or psychological assistance, legal assistance and training opportunities. Such measures would be in line with Article 6 of the UN protocol on trafficking.
If there is no period of reflection, the victims of trafficking will face immediate deportation. That is not in the interest of the victim, who may be trafficked for a second time, or of the police, who would lose the opportunity of discovering valuable information about the multi-billion dollar international trafficking enterprise. The amendment takes into account a point made by the noble Countess, Lady Mar, in Committee. She said that the wording of the amendment then was completely open-ended. We have since put in a time limit and specified that the reflection period would be three months for adults and six months for children.
The final amendment suggests a victims of trafficking fund. This is an essential component of the armour against trafficking. The Home Office found that up to 1,420 women were trafficked into the United Kingdom in 1998. There is little doubt that the problem has become worse since then. Despite that, there is only one agency, as far as we are aware, that offers specialised services to adult victims of trafficking. It is not funded to do so and can assist only if it has free bed spaces.
The UK is a signatory to the UN protocol on trafficking, Article 6 of which calls for states to provide support for victims. Such services are not available in the UK to trafficked women, and we think that it is essential that we have a fund of the kind specified in the amendment. We hope that the Minister can agree to these modest amendments. I beg to move.
"PROTECTION OF VICTIMS' RIGHTS
(1) For the purposes of this section a "victim of trafficking" is a person described in section 130 as the "passenger", irrespective as to whether a person is charged with an offence under section 130 or at all.
(2) A victim of trafficking shall be granted a reflection period of 3 months in the case of adults and 6 months in the case of minors, in which to make an informed decision as to whether to cooperate with the authorities, and during this time they will be given access to suitable accommodation, medical, psychological and material assistance and information regarding their legal rights in a language they can understand.
(3) Where there is a reasonable likelihood that, if removed from the United Kingdom, a victim of trafficking will be subjected to treatment contrary to Article 2, 3, 4 or 5 of the European Convention on Human Rights, the Secretary of State shall grant that individual exceptional or indefinite leave to remain."
"keen to ensure that the same definition of trafficking is used domestically and internationally".
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