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The Earl of Kinnoull: I briefly add my support to my noble friend. I believe that she made a most powerful case. I congratulate the noble Lord,

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Lord Clinton-Davis, on his skill in producing hilarity at 12.45 in the morning. He loosened off another volley of shot which, sadly, missed its target.

The amendment does one simple thing. It seeks to stop a fine being imposed on an airline if the participant is accepted, either temporarily or permanently, by immigration.

One issue has not yet been mentioned. I refer to the fact that there has been quite a high success rate of appeals against the fines--of about 40 per cent., I think. I hope that my noble friend will take that into account because it clogs up the courts unnecessarily and for that reason--let alone the injustice, about which all noble Lords have spoken--I hope that my noble friend will respond to the amendment with her usual sympathy and courtesy. That will add to the skilful way in which she has steered the Bill through the Committee tonight, despite the landmines which have been floating around during the past hour.

12.45 a.m.

Baroness Blatch: The noble Lord, Lord Clinton-Davis, has not been with us for most of the Bill's progress although he has joined us this evening and enlivened our proceedings somewhat. However, perhaps I may advise him that we have voted three times today and that his colleagues have protested a great deal on many amendments--amendments about which they were showing some signs of indignation, about which they were concerned and about which they writhed in agony and great anxiety in relation to injustices which they claimed--but they chose not to press those amendments. Indeed, as I said, even on all the amendments that we have discussed today, we have voted only three times.

I thought that the noble Lord was quite offensive to my noble friend. His outrage was pompous and childish. In that, he was joined by the noble Lord, Lord Harris of Greenwich, whose colleagues have protested greatly today, but have not challenged--

Lord Clinton-Davis: Childish?

Baroness Blatch: That is a word to have fallen from the lips of many other colleagues in respect of the noble Lord on such occasions.

Perhaps I may answer the question asked by the noble Earl, Lord Russell, about Clause 5(1)(b). If the airline knowingly colluded, assisted or facilitated--I think that that is the legal jargon--an illegal immigrant or entry into this country, it would be caught by Clause 5(1)(b), but we are not talking about airlines knowingly carrying passengers for the purpose of illegal entry. Indeed, even with passengers who travel with or without documentation which is in order, the airlines are still not aware that, on arrival, they will seek entry into the country--

Earl Russell: I am grateful to the Minister and understand and accept the point that she is making, but the point about Clause 5(1)(b) is that it is not confined

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to illegal entry or deception; it applies to any asylum seeker. Does that mean that any airline which flies any asylum seeker will suffer carriers' liability?

Baroness Blatch: Clause 5(1)(b) relates to the entry into the United Kingdom of anyone who is known to be an asylum claimant. The provisions relate to illegal entry and harbouring. Clause 5(1), which amends subsection (1) of Section 25 of the 1971 Act, relates to assisting illegal entry, and paragraphs (b) and (c)relate to illegal entry and to illegal harbouring after entry.

Lord Harris of Greenwich: If I may be impertinent, I suggested that the Minister should follow what I was saying, but she was having an interesting conversation with her noble friend at the time. I was not referring to an airline; I was referring to a ferry company that brought into this country a Nepalese military band which had lawfully entered this country, gone to play Nepalese military music in Germany, and returned to this country only to catch a plane from Heathrow. A fine was imposed. Why? What British interest was served? They were not asylum seekers. They were not illegal immigrants. When the Minister mentions illegal immigrants, her voice trembles with indignation. But we are not talking about that; we are talking about a uniformed military band. How can it conceivably be in the interests of this country to fine the ferry company in such circumstances?

Baroness Blatch: The noble Lord is becoming overexcited. I am not referring to his point but to a point raised by the noble Earl, Lord Russell. He asked me specifically about Clause (5)(1)(b). The airline would not be caught by Clause 5(1)(b). I turn to the point raised by the noble Lord, Lord Harris, who appears to be rather excitable at the moment. The noble Lord is rather extravagant with his body language. Given that carriers' liability is tied to documentation which is not in order, is the noble Lord suggesting that all the documentation in that case was in order and therefore the carrier's liability levied was inappropriate?

Lord Harris of Greenwich: If the noble Baroness refers to Hansard tomorrow she will see that the first time I spoke to this question about 20 minutes ago I explained the matter in some detail. If the noble Baroness cares to write to me--which may be a simpler way of dealing with the problem--perhaps she can explain how any British national interest was served by fining a ferry company in the circumstances that I described.

Baroness Blatch: If it occurred under these provisions and passengers were carried with incorrect documentation it would be reason to consider the carrier liable. But my understanding is that the noble Lord had extensive correspondence on the issue years ago when he first raised the point. If there is anything more to say over and above what I have said in response to him, I shall write to the noble Lord. It is my custom to do just that in relation to points not properly replied to in debate.

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The Immigration (Carriers' Liability) Act 1987 places an obligation on air and sea carriers to ensure that all passengers brought to the UK hold valid passports or acceptable travel documents and, where necessary, are in possession of valid visas. Given all the examples that have been recited round the Chamber, I do not know whether the people referred to--the noble Lord, Lord Harris, has not answered my question--were carrying documentation that was in order. This measure was introduced to stem the flow of inadequately documented passengers who were being brought to the UK in the late 1980s. It remains an essential element in our immigration control. It acts as a major deterrent, both to passengers who know that they require proper documentation before travelling and to carriers who need to consider their commercial interests against their legal responsibilities.

While the costs may be unwelcome to many carriers, the concept of requiring carriers to ensure that passengers are correctly documented for their journey is not unique to the UK. It is underpinned by Annex 9 to the Chicago Convention which states that carriers should seek to ensure that passengers have the requisite documentation when they embark. Thirty-nine countries have similar legislation, including Canada, Australia, Germany, France, Belgium and Denmark. The basis of charging is similar, but each country has naturally adopted its own system of application. I have some sympathy with my noble friend, of which he is aware from discussions that we have had within the department, in that anything we can do to facilitate the ease with which that duty is carried out is to be welcomed. I can assure my noble friend that we shall continue to do what we can to make it a smoother operation.

Since the Act's introduction on 5th March 1987 about £91.5 million has been levied in charges on passengers. However, a charge is imposed as a matter of strict liability only if a passenger requires leave to enter the UK. There is no liability if leave to enter is not required: for example, in respect of EU or EEA nationals. Additionally, where liability exists it is based solely on the question of the inadequacy of the passenger's documentation. There is no linkage between that and whether or not a passenger is granted leave to enter. That is a matter for the immigration officer who will make a judgment based on all of the circumstances available to him. It is quite a separate matter from the responsibility of the carrier.

The responsibility for deciding whether or not to carry a passenger rests with the carrying company in every case. If a carrier knowingly carries a passenger whose documentation is wrong or inadequate then it seems only right that it should be liable to be charged accordingly.

The l987 Act and the Immigration Act l97l are entirely separate. There is no requirement that a carrier should additionally satisfy itself that a passenger will be acceptable to the UK authorities on arrival. That judgment can be exercised only by the immigration officer. The carrier cannot, and should not, be expected to anticipate that decision. That is not to say that the Government are not prepared to waive charges where

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we believe that it is right to do so. Where a charge has been incurred by a carrier in respect of a passenger who is recognised as a refugee under the convention and protocol and any dependants, it is the Government's policy to refund the charge if it has already been paid, or to waive it if it has not been paid. We believe that that seems fair and just to all parties.


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