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Lord Dholakia: My Lords, we on these Benches would like to support the amendment moved by the noble Viscount. This amendment is not about clandestine entrants; it is about those entrants who have been given refugee status in this country. The interesting thing about this amendment is that it is not only talking about the refugee convention but also includes mention of the Human Rights Act, and refers to someone who,


The amendment provides for refunds for those who carry clandestine passengers who are ultimately accorded this particular protection. The relevant discussion took place in Committee in July. At that time, the Government tried to justify the absence of a refund scheme for those who bring in clandestine entrants who are ultimately accorded protection on the basis of a distinction between carriers carrying undocumented passengers and those carrying clandestine passengers.

Concessionary refunds are available to carriers (not necessarily on the face of the Bill) who bring in undocumented passengers who fear imminently for life or limb and ultimately get refugee status. No such refunds are available for those carrying clandestine passengers whose passengers are ultimately given protection and whom the Government said were, by definition, uninterested in whether or not the persons carried were “genuine". When he last replied to this debate, the noble and learned Lord, Lord Williams, actually described the distinction that he was making as,


    “not a philosophical one or a linguistic ploy".

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I hope that the noble and learned Lord will now accept that most carriers who carry undocumented passengers do not know that they are undocumented; otherwise they would not carry them. Whether an undocumented passenger ultimately satisfies the criteria for the concession is a matter of chance so far as the carrier is concerned. The situation is in fact the same as that for clandestine passengers. There is thus no justification for the distinction made between the two categories. The refund should be available to both and given statutory force.

The amendment is also tied up with a few other amendments; namely, Amendments Nos. 41, 44 and 45. Perhaps I may briefly touch on Amendment No. 44. Again, in that amendment we are proposing that the Secretary of State should be liable to compensate any person,


    “whose vehicle is detained or sold for losses incurred, if the detention is subsequently found to be ill-founded".

We find it incredible that the Home Secretary could actually take a decision to impound someone's vehicle, and yet refuse to pay compensation for such action when ultimately the case is not proved and the owner's status granted. There cannot be two different laws: one for the illegal entrants who are given refugee status and another for the Home Secretary. I believe that this amendment would actually put the matter right.

Viscount Brentford: My Lords, I support Amendments Nos. 34 and 41 and agree with the comments that have been made. It seems to me that it may be a matter of pure chance whether an individual is a clandestine or an undocumented passenger. Indeed, it merely depends on his or her situation at the time when the decision is made to try to get into this country as an asylum seeker.

It has already been said that this is a matter of chance so far as the carrier is concerned. I suspect that that is also the case as regards the applicant. Therefore it seems to me that these two almost identical amendments, Nos. 34 and 41, should be perfectly acceptable. I warmly endorse them.

The Lord Bishop of Oxford: My Lords, I rise briefly to support this amendment and to make one point. It might be argued that the amendment will encourage clandestines to claim asylum. However, this is unlikely. The clandestine has no interest in whether or not a particular carrier is subjected to a penalty. The amendment will generally have an effect only after the clandestine is discovered by a carrier. At this point a significant percentage of clandestines will have decided to claim protection anyway. The imposition of a penalty will make no difference to their behaviour, rather it may influence the behaviour of carriers in bringing clandestines to the attention of the authorities. I support this amendment and also Amendment No. 41 for similar reasons.

Earl Russell: My Lords, a penalty normally is intended as an incentive to some forms of action and a disincentive to others. I do not think that it is appropriate to the situation to have a disincentive to

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take clandestines on board. I think that practically no carrier wishes to do so. No one who is carrying a load wishes to have that load mucked up; it might cause them some damage and some trouble with their employers were they discovered.

But, if the Bill remains unamended, I wonder what kind of incentive is being given to carriers by the existence of the penalties if we once accept that they did not intend those people to be there. This, I think, is practically always the case. If a carrier, say in the middle of the ocean, discovers a clandestine passenger on board, what is the incentive effect on that carrier of the penalties at present provided in the Bill? I should be glad to know what the noble and learned Lord thinks is the answer to that question.

Lord Falconer of Thoroton: My Lords, there are four amendments in this group, Amendments Nos. 34, 41, 44 and 45. Amendments Nos. 34 and 41 basically put forward the proposition that if you are a clandestine but ultimately succeed in your application for asylum, no civil penalty should be imposed upon the carrier. Thus, I may approach a lorry driver and say, “I am bound to be granted asylum. Can I secrete myself upon your vehicle to get through immigration controls?" As I understand noble Lords, they would wish no civil penalty to be imposed in that situation, subject to the result of the application for asylum. That cannot be the right message to give when one is seeking to reduce the number of people who seek to enter by clandestine means. In my respectful submission this matter has not been thought out at all by the movers of the amendments, if one accepts that one is trying to prevent people entering on a clandestine basis.

No doubt any carrier who is at all sympathetic may be confronted with someone who says that he will gain entry, or may be confronted by a racketeer who says that every person in a group of people are bound to succeed in their applications as they have reasonable claims and the carrier should therefore hide them on his lorry. As I understand the position, that is the kind of case that some noble Lords would wish not to give rise to a civil penalty. In my respectful submission that is not consistent with the earlier proposition of the noble Viscount, Lord Astor, when he said that we were trying to stop people from entering on a clandestine basis. I ask noble Lords to think again on these amendments.

The other amendments propose in effect that where a wrongful detention of a transporter takes place, albeit not one that is unreasonable, the state should, in effect compensate the carrier whose transporter has been removed wrongfully but not unreasonably. With respect, we reject such an amendment. Your Lordships will be aware that every carrier has two separate opportunities to make representations against any individual charge liability which it disputes--first, to the port inspector and, secondly, if those are unsuccessful, to a senior officer at Immigration Service headquarters.

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Although we seek to work closely with carriers, once the representation process is complete and where the representations are unsuccessful, we expect payment of the debt without further ado. The power to detain will be implemented only as a last resort and after all efforts to persuade the carrier to settle the debt have failed. As the Bill makes clear, if that power is used unreasonably compensation will be paid. If the power is used reasonably, albeit that subsequently it proves to be wrongful--perhaps for reasons not brought forward at the two stages of representation--we feel it would be inappropriate for the taxpayer to meet the cost of compensation to carriers. I respectfully ask your Lordships to resist these amendments.

Earl Russell: My Lords, before the noble and learned Lord sits down, perhaps he can answer one question. Suppose, in his private capacity, he was to meet, shall we say on Calais docks, an asylum seeker without genuine documentation who convinced the noble and learned Lord that he was genuine. What advice would he give that asylum seeker about the correct method for gaining entry into this country?

Lord Falconer of Thoroton: My Lords, I would certainly not say to the asylum seeker “Why don't you get into the boot of my car. Let's go through immigration." As I understand it, that is what is being suggested.

Earl Russell: My Lords, what would the noble and learned Lord say?

Lord Falconer of Thoroton: My Lords, the noble and learned Lord would say to the asylum seeker, “Make an application to the authorities in the usual way. Do not try and get into the country clandestinely".

Baroness Williams of Crosby: My Lords, perhaps the Minister will answer a further question. I am puzzled by what he said. If someone applies to enter this country in the normal way--which means with proper official documents--but he is fleeing from Iraq and could not therefore possibly have official documents in order to come to this country, we see no way in which even the most extreme case of a genuine asylum seeker who has suffered for his beliefs--beliefs that we share--can any longer come to this country without heavy penalties falling on whoever facilitates his arrival here, however genuine he is. With great respect, the noble and learned Lord is overstating the case and leaving out of the count almost entirely this group of people whom he and his noble and learned friend said they were concerned about.


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