Nationality, Immigration and Asylum Bill

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Simon Hughes: Amendment No. 330 is an alternative to amendment No. 329. We have moved swiftly to part 7 on offences, which is the last substantive part programmed for consideration today. The amendments relate to the first proposed new offence, which will replace the definition of the offence in section 25 of the 1971 Act with the more widely drawn offence of assisting unlawful immigration to a member state. The second provision in the clause covers the similar but different offence of helping asylum seekers to enter the UK.

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The new offences should not be so widely drawn. Various phrases do not appear to have a prehistory in other immigration legislation, and some look as if they will be difficult to understand and interpret, not least because they require an understanding of other nations' immigration law as well as our own. Other phrases are also difficult to work out, such as those in new sections 25(1) and (2) about travel within the state. There is the question of how severe the penalty should be in order to draw up a league table that puts penalties in an appropriate hierarchy so that there are no inappropriately severe ones.

Amendment No. 324 would add ''and for gain'' to the provision on the new offence of assisting unlawful immigration to a member state. We tabled the amendment because we believe that the clause's purpose is to try to stop the illegal trafficking of people, especially women and children for sexual exploitation, as the hon. Member for Walthamstow noted. That is entirely proper, but I have a general question for the Minister. Would it not be more appropriate to include that offence in sexual offences legislation? I understand that such legislation is on the stocks, and that the Home Office has consulted on it and issued a White Paper. The Government may say perfectly reasonably that they want to include that offence in the Bill to catch people early. That is fine, but its eventual destination is the sexual offences legislation, when it is brought before Parliament.

On alternative penalties, the penalty for the offence in new section 25(6) is

    ''on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.''

The suggestion is that if we have a 14-year maximum penalty for an offence as it is currently described, we shall not follow the nature of the penalties in the Bill or distinguish between the offences of trafficking for the purpose of exploitation, which is extremely serious, and facilitating that, which is a lesser offence. People might be agents or aide and abet down the line, but while some are directly involved in bringing harm to someone, others are either not involved or involved only indirectly.

What thought have the Government given to that differential and what consultations have taken place on whether the Bill provides for the right penalties? Practitioners have told me that there should be different penalties for different offences, and it would be helpful if the Minister told us what consultations have taken place, what responses the Government have received and their justification for the proposed penalties.

Ms Winterton: This is obviously an important clause, which replaces section 25 of the 1971 Act with four new sections. The current section 25 makes it an offence knowingly to assist illegal entry to the UK or to help someone to obtain leave to remain in the UK illegally by means including deception. The first major change is that the first new section extends the offence

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to encompass assisting someone to enter, travel within or remain in any European Union member state in breach of the laws of that state.

The facilitation of illegal entry—the hon. Gentleman has used that phrase—is increasingly the work of organised criminal gangs. Those gangs do not respect international boundaries, and new section 25 will enable the UK to participate in a joint approach to combating the crime on a European, rather than simply a national, basis. That is extremely important if we want to combat the problem effectively.

As the hon. Gentleman said, the second major change is that the maximum penalty for the reformulated and expanded offences is increased from 10 years' imprisonment and/or an unlimited fine to 14 years and/or an unlimited fine. Although the current maximum meets our European obligations, we made it clear that we consider such crimes particularly abhorrent and therefore want a higher maximum penalty. We believe that 14 years is appropriate.

The third change relates to harbouring an immigration offender. That is a separate offence under section 25(2) of the 1971 Act, but it will be subsumed in the new offence because it constitutes assisting someone to breach immigration laws by being in the UK when they have no right to be here.

Amendment No. 324 would limit the offence of facilitating illegal entry to cases where that is done ''for gain''. An exemption to protect people who facilitate such entry for motives other than gain is appropriate in the case of asylum claimants, but we do not believe that there is justification for assisting someone to enter the UK illegally. Such a breach of immigration law should be an offence, whether or not the motivation is profit. The amendment is not only undesirable in principle, but unworkable in practice.

Amendments Nos. 329 and 330 offer a choice of maximum penalty for facilitating illegal entry—two years or five. Only two years ago, the penalty for that offence was increased from seven years to 10 in response to comments from the judiciary that the former maximum was insufficient to deal with the most serious facilitations. Having taken those points into account and to show how seriously we take such activity, we propose 14 years as appropriate rather than 10. I hope that the hon. Gentleman withdraws his amendment.

Simon Hughes: How many convictions have there been under the law and what is the range of penalties? The Minister says that the tariff was raised two years ago as a result of representations from the judiciary. Has there been further consultation and has any view been expressed that a penalty of 10 years is not enough? Should the offences of trafficking and of facilitating have the same upper limit? I understand the distinction that the Government draw between the offence that we are discussing and that concerning asylum seekers, which we shall discuss under the next clause, but is there not a case for setting different upper limits for the trafficking offences and the more remote facilitating offences?

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Ms Winterton: I shall quickly answer the hon. Gentleman's question on sexual offences. We are dealing with such offences under other legislation. The current legislation deals with inter-country problems, but an assurance has been given that the issue is being looked at. I do not know how many convictions there have been, but I shall attempt to find out.

On the hon. Gentleman's point about the difference between the offences of facilitating and trafficking, it is important that we send a clear message on the offences. The judiciary commented on the issue and its views, with public opinion saying that we must take firm action, made us decide to set such maximum penalties.

Simon Hughes: I shall reflect on what the Minister has said, and I am grateful for the information that she has given. It would be helpful if she came back with the figures on convictions and tariffs, because the debate is wide and important, and it will continue beyond the Committee. The amendment is probing and I am happy to withdraw it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 pm

Simon Hughes: I beg to move amendment No. 325, in page 55, line 32, leave out from ''Union'' to end of line 35.

The Chairman: With this we may discuss the following amendments: No. 306, in page 55, line 36, leave out ''a member State'' and insert ''the United Kingdom''.

No. 327, in page 55, line 38, leave out ''State'' and insert ''United Kingdom''.

No. 328, in page 55, line 40, leave out from beginning to ''or''.

No. 332, in page 57, line 4, leave out from ''Union'' to end of line 7.

Simon Hughes: We are moving down the page to the next issues. Amendment No. 306, which we have tabled with the hon. Member for Woking and his hon. Friends, would ensure that the offence is clearly defined. Amendment No. 325 would remove new section 25(1)(b) and leave the offence as knowingly facilitating

    ''the commission of a breach of immigration law by an individual who is not a citizen of the European Union''.

The Minister and hon. Members will agree that new section 25(1)(b) is a far more subjective test. It will make it an offence for you, Mr. Hurst, or I to do something that we have

    ''reasonable cause to believe may facilitate the commission''

of offences, even if no eventual offence is committed. That is rather like the riddle on the theft legislation about whether one can conspire to steal something that is not there to be stolen. Is it right that it should become an offence to do something that one thinks may be illegal, even if it is not?

Amendment No. 306 would limit the provision to UK law rather than that of any EU member state. We shall have a debate in another context on the extradition legislation—European arrest warrants and

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so on will be on the agenda—and when the law here should act in relation to occurrences in other member states. Practitioners and others point out that it will be difficult for magistrates and judges here to interpret the immigration law in France, Belgium, Italy, Portugal or elsewhere. It is difficult enough to work it out in this country. The task will be almost impossible and potentially delaying for the courts, so I ask the Minister to get rid of those proposals as they stand. That would also be the effect of amendment No. 327.

Amendment No. 328 would remove the phrase ''travel within the State'', thereby limiting the offence to a law controlling entry to a state or someone being in the state. In theory, all sorts of laws could govern our right to travel within states, yet it is not blindingly obvious which the Bill is aiming at. It would be helpful if the Government explained that point. I do not have the knowledge or expertise to know the answer, but I am told that this phrase is previously unknown in UK immigration law. Is that right? If so, why is it being introduced?

Amendment No. 332 relates to the proposed new offence of assisting entry to the United Kingdom in breach of a deportation order. It should be limited to knowingly facilitating a breach of a deportation order in force, and not depend on subjective assessment of whether the accused has committed an offence. I am sorry that we are in complicated areas of definition. You, above all, Mr. Hurst, know how important it is for the law to be clear, so that people know where they stand. I hope that the Government seriously consider the amendment.

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