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Lord Bassam of Brighton moved Amendment No. 1:
The noble Lord said: My Lords, the amendments will provide two new defences to the offence of being without a valid immigration document at a leave of asylum interview. Amendments Nos. 6 and 12 will do that by adding two new defences to those listed in subsection (4) and by making the defences available in subsection (5) to someone who is charged with the offence in respect of a child.
The first defence ensures that, if a person has no valid immigration document, he has a defence if he can produce a false document and can prove that it is the one that he used for all purposes in connection with his journey to the United Kingdom. As has been stated in this House and in another place, we understand that not everyone will have a valid passport available to them and that they will consequently find other means to travel to the United Kingdom. We want people to be honest about those means and to ensure that those travelling on false passports are upfront about the fact and present them to us. The destruction and disposal of false passports hinders immigration control and fuels the work of facilitators in much the same way as the destruction or disposal of valid passports.
The defence will make clear to an individual travelling on a false passport the advantages of retaining it in order to protect himself from committing an offence. A person who travels on a false passport that he then destroys or disposes of will not be able to rely on that specific defence. He may still seek to rely on the defence of
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reasonable excuse for not being in possession of a valid document or that of never having had a valid document. In those cases, though, we would expect the person to establish that it was indeed his false and not his valid passport that he destroyed or disposed of and to explain why he disposed of it. Amendment No. 13 provides a definition of the term "false immigration document", which is needed as a consequence of Amendments Nos. 6 and 12, which provide a defence related to the production of such a document.
I hope that the second defence will be welcomed by your Lordships' House. We have listened to and carefully considered the concerns raised in Committee in this House and in another place about when the offence is intended to bite. It has always been clear that the offence is designed to capture the mischief of destroying or disposing of immigration documents en route to the United Kingdom. It will not target those who have never had an immigration document during their journey. In creating the additional defence, we have sought to address those concerns.
The amendments will provide that it is a defence for a person to prove that he never had such a document during his journey to the United Kingdom. That puts beyond doubt our intention to catch only those who have destroyed or disposed of their immigration document, not those who never had one. The other amendments are consequential. I beg to move.
Baroness Anelay of St Johns: My Lords, I support the Government's amendments. I welcome the fact that the Government are still trying to provide greater clarity by ensuring that the clause will penalise only those who intentionally destroy or dispose of the immigration document that they have used to travel to the UK, where they then claim asylum or intend merely to disappear into the population at large, as some people do.
The clause was improved considerably in another place, which takes us one step further. While I agree that it is right to ensure that those who are fleeing from persecution or being trafficked illegally should not fall foul of the penalty in this clause, I have one or two questions to ask about the potential impact of the government amendments.
Does the Minister see any potential problem with the provision that perhaps could be seen as acting as a stimulus to the trade in false papers? Does the Minister think that it might act as a signal to people who are economic migrants—not those who are fleeing from persecution, as so many do, to come to these shores—that perhaps there is a way around the penalty if they are able to afford to buy forged or stolen documents? I am sure that the Minister is as concerned as I am about the stories of the problems faced by people who put themselves and their families into hock with the vile people who trade in false papers because of the huge costs involved in buying them and in being transported here.
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If people come to these shores, what do they have to prove to the Government to show that they have used those documents throughout? For example, do such people have to prove that they used the documents at all stages of their journey from their country of origin or does it apply only for that leg of the journey where they come into this country? As noble Lords are well aware, people who travel from around the world are taken on goodness knows how many different types of journey before they are finally in safety in this country.
How will those people be able to prove when and where they started to use those particular documents? What kind of proof will the Government accept as valid? I realise that if the Government's experiment with documentation by carriers in Clause 11 is considered by the Government to be successful at some later stage, the Johannesburg experience may spread further but not, I believe, worldwide, as under the Government's current plans.
That causes a problem because some people who are coming here might face questioning about their documents and have to provide for the Government a level of proof about where they got their false documents and how long they have used them, but that might not affect everyone. The difficulty is that the carriers, who are required to follow rules about documentation under Clause 11, are not all the carriers worldwide. They appear to be just those who are providing the carriage of the person from their last port of call, such as Johannesburg to the United Kingdom, whereas we know that many people use other airports as a hub.
I am asking the Government to give the House assurances about the level of proof that people will have to give about when they started using their false documents; that is, whether the proof must be from all around the world or from just before they came into this country. What is the duty placed on that person therefore in garnering and preserving any relevant information?
Lord Avebury: My Lords, I entirely agree with the point just made by the noble Baroness, Lady Anelay. At Question Time, the noble Baroness, Lady Amos, told us that there are 2 million Zimbabwean refugees in South Africa. As we know, some of them attempt to come here on false South African passports. But the documents that they use to travel from Zimbabwe to South Africa, if any, would be lost in the mists of history. I agree with the noble Baroness that we need clarification from the Minister about whether the first of the two amendments means that the document at which we are looking is simply the one on which the person travels for the last leg of the journey.
However, I can see that there are problems even with that. How does one actually prove that that was the document used to get on the aeroplane in Johannesburg—or wherever it may be? I should like to know what standard of proof would be expected and what sort of evidence would be used in defence. Obviously, the person responsible at the airline desk in Johannesburg cannot be called to come to this country to say that he saw that someone was in possession of a South African travel
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document or that he could confirm that that was the document presented on arrival. A person on a travel desk is only verifying that someone has a document to enable him or her to get on the aeroplane.
Much the same questions will apply to the second amendment where a person has to prove that he did not have either a valid or invalid immigration document during the course of his journey to the United Kingdom. As we have said, there are people who travel from one country to another clandestinely. They do so for the very good reason that the people who are persecuting them in their country of origin will not issue them with travel documents so that they can go abroad and tell the world what the regime is like.
Although we welcome any attempt that has been made by the Government to mitigate the difficulties of this offence, which we shall come to in more detail in the next set of amendments, we think that they still need to explain how a person satisfies the court that he has a defence under either of those headings.
The Lord Bishop of Salisbury: My Lords, I, too, want to press the Minister to be a little more specific about this point. I am thinking of a particular group of people; that is, those in the southern Sudan who, when they leave, will not have anything that any of us would recognise as a travel document. He may have seen, as I have, some of the very flimsy home-made laissez passer documents that the SPLA use and issue to people, particularly to young people. Young boys who are conscripted for fighting from the age of 11 or 12 will have hardly anything in their hands. Some of them may well get stopped on their way. But if any do come here, it is not just a question of whether their documents have been stamped on the way. Often, they will not be stamped because there is hardly anything to stamp. In most cases, they will have just a very small scrap of paper, which will be a pasteboard at best. The whole business of trying to record a passage will be extraordinarily difficult.
I understand that we cannot put into legislation the details of how people coming from particular countries might be able to fulfil that. However, there are those countries in the world where people who have been under duress and are unable to link with the authorised or publicly recognised governments of their countries for many years will just not have any papers that we could possibly call documents.
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