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Lord Dubs: My Lords, I am not sure that I am allowed to speak. I do not believe that I am.

The Deputy Speaker (Lord Lyell): My Lords, I apologise for not informing the House that if Amendment No. 46 is agreed to I cannot call Amendments Nos. 47 to 49 owing to a pre-emption. However, I understand that those three amendments have been grouped together.

On Question, Amendment No. 46 agreed to.

[Amendments Nos. 47 to 50 not moved.]

Earl Russell moved Amendment No.51:

Leave out Clause 5.

The noble Earl said: My Lords, the purport of this amendment is to leave out Clause 5. Even with the welcome assurances that the noble Baroness has just given, I am still under the impression that it is no more true that Clause 5 is directed against racketeers than that the Bill is directed against bogus asylum seekers. In

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neither case is any attempt made to distinguish between the genuine and the bogus. The Bill purchases on both equally. It is a bit like the Tom Lehrer approach to shooting: one sits there looking cute and when anything moves one shoots.

Other issues arise from the clause, one of which is: what is an illegal entrant? To probe that a little further, the judgment of the Appellate Committee of this House in Naillie in 1993 was that a person who entered without a valid passport intending to claim asylum was not an illegal entrant. A Home Office briefing which was provided while this Bill was before another place suggested that one of the purposes of the Bill was to repeal the judgment in Naillie. I hope the noble Baroness can tell me that that is not so. Naillie rested on the distinction between people who land and are in the airport and those who attempt to gain entry. If the noble Baroness, Lady O'Cathain, were in her place she would confirm that that must be a valid distinction; otherwise, all transit passengers would require immigration papers, which would mean a vast amount of extra work.

It seemed to me that there was no good reason to object to the judgment of the House in the Naillie case, so I hope that we can be told that the Bill is not intended in any way to reverse it. The key point in that case was whether there was a third status between illegal entrants, legal entrants, and asylum seekers of the third status--whether they were made legal by the wish to claim asylum. That is a crucial question.

The next point that arises is the question of deception under Clause 5(1)(c). I shall not go through all the long argument I had with the Minister about the status of the in-country applicant--whether that involved deception or not. If she could not go through that in her sleep by now, I would be surprised. But I think she must understand that I believe that assisting someone to claim in-country remains a legal activity. It must concern me that anyone else professionally involved, who believes the same as I do and acts on their conviction, is running the risk of conviction under the Bill. That is something that is liable to breed martyrs, and that is something which tends to lead all governments into trouble. It concerns me rather deeply.

I am also deeply worried about Clause 5(1)(b) which makes it an offence to assist people who intend to claim asylum. Claiming asylum is a perfectly legal activity. There is no reference to deception in Clause 5(1)(b). It surprises me deeply to find attempting to assist people to do something legal made a crime in that way.

I have taken advice, and I find that the only other case where it is a crime to assist someone to do something legal is the suicide pact. I do not believe that the cases are parallel. This clause will do a great deal of mischief. I remain deeply opposed to it. I beg to move.

Lord Dubs: My Lords, I wonder whether I might briefly put two questions to the Minister about Clause 5. The first is one that I raised in relation to the previous amendment. It relates to the use of the word "refugees" in at least one instance in the clause when in other instances the words "asylum claimant" are used. I wonder whether the use of the word "refugees" is

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significant and whether it is meant colloquially to cover asylum seekers or whether technically we might not be running into difficulties by talking about organisations that assist refugees and thereby excluding organisations that assist asylum seekers--those being the main people about whom we are talking, given that we are talking about claims for asylum.

I should have thought that technically it would be better if we did not use the word "refugee" in a loose way, and that therefore we should use the words "asylum seeker" rather than "refugees" here. I do not know whether the Minister has a view on that, but that is how it seems to me.

Perhaps I may put another question for clarification. Given that there are some safeguards contained in Clause 5, am I right in thinking that in so far as there is protection, that protection is only for those advising asylum seekers as port or "on entry" claimants and not those helping in-country claimants? I wonder whether there is a difference there, and that we are giving greater protection to one set of advisers and less to others, or whether I have misunderstood the way in which Clause 5 operates.

Baroness Blatch: My Lords, it is clear from correspondence with me, and his previous contributions to the debates on the Bill, that the noble Earl does not care for the idea that those who facilitate the entry of asylum seekers to the UK should be liable to prosecution. It is not a new idea. Section 25(1) of the l97l Act has always made it an offence for any person to facilitate the entry of illegal entrants to the UK. The case law is clear. If a person assists another person to pass through the immigration control, using deception, or bypassing the control completely, that person is an illegal entrant, and--

Earl Russell: My Lords, is the Minister saying that an asylum seeker is an illegal entrant? If so, she is contradicting the judgment of this House in the Naillie case.

Baroness Blatch: My Lords, no, I did not say that. The noble Earl is putting quite the wrong interpretation on the matter. I am saying that helping someone to pass through by deception is illegal. I shall repeat what I said. Section 25(1) of the 1971 Act has always made it an offence for a person to facilitate the entry of illegal entrants to the United Kingdom. The case law is clear. If a person assists another person to pass through the immigration control using deception, or bypassing the control completely, that person is an illegal entrant, and the person who facilitates the entry is guilty of an offence under Section 25(1). This is irrespective of whether the facilitator acts for personal gain, or if the illegal entrant so assisted goes on to make a claim for asylum.

That is the current position. We have previously made clear that the new offence of facilitating the entry of an asylum seeker has been introduced to plug a hole in our existing immigration legislation which was exposed by legal judgments, and defences will be available to those who facilitate the entry of an asylum seeker. I will not

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rehearse those defences again as they have already been covered in detail, but suffice it to say that this new offence does not criminalise the act of seeking asylum. Its aim is to combat those who make profit by facilitating the entry of asylum seekers, and in that aim it has been broadly welcomed by all sides during the consideration of the Bill. Doubts have been expressed about the scope of the offence and the defences to it, and the Government have responded to these doubts by bringing forward an amendment which tightens the focus of the offence.

Clearly, the noble Earl does not share the broad welcome which, as I have just said, has been given to the idea that the activities of facilitators should be stopped. Not only would he remove the offence of facilitating the entry of asylum seekers from the Bill, he would also remove the other new offence; facilitating the acquisition of leave to remain by deception as well. I find this difficult to understand. I can see no argument for protecting the activities of those who run bogus educational establishments and marriage rings, who obtain their profits by encouraging others to break and circumvent our immigration laws. No one should be in any doubt that the profits available to those engaging in such activity are considerable, and consequently this problem will not go away simply by ignoring it.

Those who encourage others to circumvent our immigration laws are not motivated by altruism. Their only concern is personal aggrandizement. I believe, and the Government believe, that we must have effective powers to deal with these people. This is what Clause 5 provides, and this is what this amendment would remove. I think it will be clear that I see no merit whatever in this amendment, and I strongly urge the House not to accept it.

The noble Lord, Lord Dubs, referred to refugees. There is no special significance in this. As he said, the colloquial reference is "intended", as most organisations are called refugee organisations. I do not believe that there is anything disparaging there. The noble Earl, Lord Russell, referred to an illegal entrant as defined in Schedule 1. It is our intention to reverse Naillie because that case held that a person could avoid prosecution for facilitation if that person assisted claimed asylum on arrival. As regards the noble Earl's other point, assisting to claim asylum in-country is legal. That is the purpose of my Amendment No. 46.

I hope that the clause will remain part of the Bill. It is important. It has wide support inside this House, in another place and in the country generally. The truth is that we believe that gaining at the expense of vulnerable people who are attempting to gain entry to this country is an important issue. Racketeers do exist and they profit from their evil activities. The offence is needed. The defences against this clause are set out in subsection (2). They provide the necessary safeguards for those acting lawfully. I argue that the clause should remain part of the Bill.

11.30 p.m.

Earl Russell: My Lords, the noble Baroness is now putting words into my mouth. I apologised to her for

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doing so and I hope that she will return the compliment. The noble Baroness is suggesting that I am trying to assist racketeers. I do no such thing. My objection to this clause is that it purchases equally on the innocent and the guilty. I am in favour of imprisoning burglars but I am not in favour of imprisoning the whole population because there happen to be some burglars among it. It is a very vital distinction.

I am in favour of measures against those who do evil if they are aimed at the people who do the evil. It is that test which this clause and this Bill have failed totally. The noble Baroness says that it has always been that way but 1971 is not always. However, I shall let that pass.

I shall not take the noble Baroness through the whole of the argument between us about what constitutes deception. She places some things under that heading which I do not. I do not intend to pursue that argument but I believe that she is doing a great deal of harm here.

I thank the noble Lord, Lord Dubs, for raising the question of the word "refugee". It is interesting because it is a word which may be interpreted in more than one way. I hope that the noble Lord, Lord Dubs, may be in part reassured by the way in which the word has been interpreted by the noble and learned Lord, Lord Nolan, judging in this House in the Khaboka case in 1993. He said that the term "refugee" must be taken as encompassing asylum seekers who subsequently have their refugee status accepted. He said that it is common sense and a natural reading also of the words of Article 31(1). The term refugee means what it says. It will include someone who is only subsequently established as being a refugee. I hope that that is clear to both sides of the House.

This argument will continue in the next Parliament, no matter who is in office. However, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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