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Baroness Williams of Crosby: My Lords, I am grateful to the Minister for giving way. On that absolutely crucial point that given that it is extremely difficult for a person to receive a passport or other document from certain tyrannical or dictatorial governments, do the Government take into account not only the special case of Zimbabwe but other similar cases where the government concerned—and the DRC might be such an example—are most unlikely to give a passport to anybody known to be an opponent of a regime?
Baroness Scotland of Asthal: My Lords, the noble Baroness, Lady Williams, raises very important issues. One therefore has to look at these issues on a case-by-case basis. The noble Baroness will know that a number of people who come to this country will say, "I belong to a certain tribe, or a certain party". They may be able to produce clear indications that that is the case. They may also have false documents or no documents at all. If they produce the documents on which they embarked, we will have some basis on which to discern whether their comments are true. That is the point.
As the noble Baroness will know, many people come forward and say, "I have this document, which is false. I was not able to obtain a real document because of my name, my tribe or my political affiliation. So this, I tell you in truth, is what I had to do to get out of the
country. This is the means I took". That enables us to make an informed judgment on whether it is true and reliable.In many of these cases, the difficulty we face is that the documents on which the person relied to embark have been destroyed. It is extremely difficult afterwards to determine whether the claims they make are bona fide. We are currently not able to retain falsely obtained documents for reasonable reasons, in order to make that sort of decision. That is the very mischief that we seek to address.
We cannot accept the amendments because we feel that we have to have some basis on which to make these judgments. We would be able to penalise only those who destroyed or disposed of documents within the United Kingdom's jurisdiction. If that were the case, I think that we would very quickly, as I said, find that people had destroyed or claimed to have destroyed their documents earlier. There would be real difficulties.
We think that the shift to require the overall case to be proved beyond reasonable doubt is proper, whereas those seeking to rely on a reasonable excuse would have to show on the balance of probabilities that they had such a reasonable excuse. I am therefore grateful, as I said, to see that the JCHR has concurred with that position.
I turn to the issue raised by the noble Earl, Lord Russell, and the points he raised about Kosovo. I am instructed that no enforced returns to Kosovo have occurred since 11 March, and that the only individuals who have returned since are those who returned voluntarily. The situation will be kept under review. That is the best information available to me.
On Slovenia, as the Government have said many times before, if a person satisfies us that they embarked for the United Kingdom without an appropriate travel document we would not prosecute them. The link to non-suspensive appeals is not present. If we were seeking to prosecute someone under Clause 2 we would not be seeking to remove them to Slovenia or elsewhere. As from 1 May 2004, if a person could satisfy us that they were from Slovenia, that would be a reasonable excuse under Clause 2 for being undocumented. I note the noble Earl's concerns, but we think that these provisions deal with them.
I turn to the questions on the prison population asked by the noble Lord, Lord Hylton. Of course it is right to look at the nature of the defence and at appropriate sentences. As the noble Lord will know, this provision sets the maximum penalty in relation to all offences. It does not mean that every person will necessarily be sentenced to a term of imprisonment or that that term will be as much as two years. We have considered the effect on the prison population. The offence is intended to deter people from destroying or disposing of their documents. We do not expect a large number of people to be convicted and do not expect custody to be used extensively. However, it is right that we should have that benchmark.
As the noble Lord will also know, in dealing with these offences and with the sorts of sentences available, all the provisions in the Criminal Justice Act 2003 and
the Courts Act 2003 will bite in relation to the ambit and range of the sentences available to the court when a two-year sentence is available. However, we hope that the deterrent effect will bite hardest of all.
The Lord Bishop of Worcester: Before the noble Baroness concludes, I seek clarification on just one point. Let us suppose that a person gets on a plane with false documents and, in her or his fear—which, if they were genuine refugees might well be the case—she or he thought that possessing false documents was much more likely to be an offence than possessing true ones, and destroyed them for that reason, would that not be a quite understandable thing for a person in that frame of mind to do? Would it be a reasonable excuse?
Baroness Scotland of Asthal: I can understand why the right reverend Prelate says that there is a frame of mind, but we are trying to make it absolutely clear that it is not reasonable to destroy the documents. I can understand why he would say that the person's frame of mind might make them fearful. We are trying to encourage people to make full and frank disclosure of what has happened to them, so they can receive sympathy and understanding, and to keep the documents they may have so they can demonstrate from whence they came. Nothing in this legislation would indicate that that would necessarily be a reasonable excuse. However, it would be for the person to describe to the authorities what happened, why he did it and what threats or other things might have played on his mind which caused him to believe that he had reasonable excuse so to do.
The Countess of Mar: I declare an interest as a lay member of the Immigration Appeal Tribunal. Is it not correct that some people come over having never held their documents in their hands? Their documents are held by an agent. They are taken through immigration control by the agent and they are dumped at UK immigration control by the agent. So they have neither wilfully destroyed nor disposed of the documents because they have never had them in their hands. So the noble Lord's amendment would not cover all the facts.
Are Her Majesty's Government not familiar with situations such as the case cited by the noble Earl, Lord Russell? Chinese asylum seekers, for example, have not been able to return to China because the Chinese Government have refused to accept them, although I understand that that is changing now. So it is not a new situation. The same happens with the DRC.
Baroness Scotland of Asthal: We know that the situation is not new. The problem is that we have to grapple with the situation that we face. The noble Countess is right to say that where we do not have clear documentation to tell us from whence these individuals may have come, it is very difficult to get replacement documents for them so they can go back. We need to try to retain the documentation that will
illustrate where the person embarked, and obtain a clear explanation from them about what has happened to them on their journey. I reiterate that our difficulty is that that information is peculiarly within the individual's knowledge. It is for the individual to explain to the authorities what caused them to travel, what fear was the basis of their flight from the country from whence they came and what documentation they had or did not have.If, as the noble Baroness describes, they never had a valid passport—it was never given to them; they never had control of it—then it is very important for them to make that clear to the authorities. If they have a reasonable excuse, that will give us an opportunity to hear it, to make an assessment of it and then to make a judgment. These provisions will help us to do that more easily.
5 p.m.
Lord Avebury: I am most grateful to the noble Lords, Lord Clinton-Davis and Lord Hylton, my noble friend Lord Russell, the right reverend Prelate and the noble Countess, Lady Mar, for their interventions which assisted us to clarify some, but not all, of the issues.
The comment made by the right reverend Prelate neatly illustrates the problems with this clause. As it was necessary for him to ask that question, he presumably did not know the answer until he heard it in the Chamber. The Minister was able to explain to him that a person who destroys his document, thinking that it will be worse to have a false document than none at all, may render himself liable to prosecution. All noble Lords present in this Committee now understand that. But somebody entering the country from Harare via Johannesburg does not have the faintest idea of what has been said in your Lordships' House. He will think, unless somebody has explained the contrary to him, that it would be more sensible for him to destroy his document en route and to come with nothing at all than to show an immigration officer the false document with which he embarked. That is the fallacy behind the clause. One can explain it in this House until one is blue in the face, but that will not get it across to people in repressive dictatorships or in parts of the world where they do not read Hansard.
Nevertheless, I am extremely grateful to the Minister for the attempt that she has made to answer the questions, even though she ignored, if I may say so, the whole of the preamble to my discussion of the amendments themselves. I was trying to show that there are several other methods of dealing with undocumented arrivals that have not been fully applied or tested. As one of the examples, I gave the use of juxtaposed controls that have been successful in reducing the number of undocumented arrivals at Waterloo by 90 per cent. I went on to say that that seems to have meant the diversion of the flow of undocumented arrivals to other ports of entry, particularly to the four terminals at Heathrow. Nevertheless, we were told that immigration officers have been successful in tying 84 per cent of undocumented arrivals to their flights of arrival. It is not true, as the Minister was saying to noble Lords, that it is
impossible to find out which plane they came on. The IND has been increasingly successful in doing that and therefore in identifying the countries from which people without documents have arrived.
There is also the question of language testing, which the Minister does not seem to have taken into consideration. She said that sometimes it is very difficult to establish whether somebody's claim to belong to a particular tribe is correct. Since language testing has been introduced, it has been possible to identify one in five people claiming to be of Somali origin as coming from one of the other countries of east Africa. This has been an effective tool in tying somebody who is undocumented to a particular country.
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