Nationality and Borders Bill

Lords Hansard - Part 2 & Report stage
Wednesday 2nd March 2022 Lords Chamber

Report (2nd Day) (Continued)

21:43

Amendment 52

Moved by

[Lord Paddick]

52: After Clause 37, insert the following new Clause—
“Refugees and people smuggling
(1) Within three months of this Act being passed, and every three months thereafter, the Secretary of State must lay a statement before Parliament regarding discussions with the governments and authorities of other countries, including those bordering the English Channel and the North Sea, concerning the steps taken to— (a) increase security cooperation between the United Kingdom and one or more third States to prevent criminal activity in assisting or purporting to assist refugees in travelling to the United Kingdom,(b) increase domestic and international rates of prosecution for those engaged in assisting or purporting to assist refugees in travelling to the United Kingdom,(c) prevent or deter a person from—(i) charging refugees for assistance or purported assistance in travelling to or entering the United Kingdom;(ii) endangering the safety of refugees travelling to the United Kingdom.(2) The statement must focus on steps other than the provisions of this Act.”Member’s explanatory statement
This amendment requires the Secretary of State to update Parliament on the actions that are being taken to tackle exploitation of refugees by people smugglers.

[Lord Paddick (LD)]

My Lords, it is me again. Amendment 52 is in my name and that of the noble Lord, Lord Coaker. As he said on Monday night, the Bill almost exclusively targets victims: victims of war, oppression and modern slavery, and victims of people traffickers. We need to focus the Government on those who are exploiting suffering while profiting from the failure of the Government to provide safe and legal routes. In fact, the more difficult the Government make it for genuine refugees to get to the UK, the more that people will have to rely on people smugglers and the more profit that people smugglers will make.

Amendment 52 would require the Government to keep Parliament informed every three months on the progress they are making to increase security co-operation to prevent people smuggling, increase prosecutions of people smugglers both in the UK and overseas, and the steps they are taking to prevent or deter people from charging refugees to help or purporting to help them to get to the UK and endangering their safety. No doubt the Government will say they do not want to give details of the actions they are taking, as this may give the people smugglers an advantage, but we need to hold the Government to account to keep the pressure on them to do all they can to stop this evil exploitation of the vulnerable.

Amendment 61, which we also support, would make it an offence for people smugglers to advertise their services. Also in this group are measures to protect rescuers. Amendment 59 would ensure that those genuinely helping an asylum seeker, such as someone sailing a yacht in the channel who comes across a sinking dinghy full of asylum seekers, cannot be prosecuted by maintaining the status quo where such a prosecution could take place only if the person was helping asylum seekers for gain.

The Bill seeks to limit sea rescue to those co-ordinated by HM Coastguard or the equivalent, but they may not always be involved, especially in what could be the vital initial stages of a rescue. Amendment 60 would extend this immunity from prosecution to situations where the rescuer reasonably believed that the coastguard would have co-ordinated the rescue if it had known about it. The Bill should focus on people smugglers, and not place good Samaritans at risk of prosecution.

Finally, Amendments 62 and 63 try to ensure that lives are not put at risk from those involved in law enforcement pushing back refugee boats. My noble friend Lady Jolly will say more on that. The Government and the Bill should target the people smugglers while doing everything they can to protect the lives of the vulnerable. I beg to move Amendment 52.

[Lord Coaker (Lab)]

My Lords, I also support Amendment 52, which the noble Lord, Lord Paddick, has just moved. As I said in Committee, it is a particularly important amendment. It is one where the Government will agree with the principle if not the practicalities of actually doing it. We all want to tackle the traffickers and the people smugglers but the Bill lacks any reference to that, a lot of the time. It is almost that it is a given. There is a lot of emphasis on changes to the law with respect to refugees and asylum seekers but not much in respect of traffickers. I think that is what Amendment 52 seeks to do.

The focus also is on security co-operation around the channel, increasing international and domestic prosecutions of people smugglers and interrupting the smugglers’ business model by preventing their crimes. On security and international co-operation, again the Government will say that they are seeking to do that but clearly, if we are to deal with the problem of channel migration and the crossings, there will have to be closer co-operation between France and the UK and between others in Europe and the UK. Amendment 52 seeks to push to the Government to say more about this.

Requiring the Home Secretary to come with updates every three months on what is actually being done to prevent these dangerous crossings and tackle the perpetrators would be of interest to us all. Something clearly needs to be done because, as I think the noble Lord, Lord Green, mentioned earlier, the situation, whatever the rights and wrongs of it, has gone from “a few” to “quite a few” to “a significant number” of people making the crossing. Whatever the Government are doing, it is clearly not working.

I have retabled Amendment 61. I am not going to push it to a vote, but the Government said a lot about it, saying, “Of course we agree with it, of course there shouldn’t be a situation where people traffickers and smugglers can actually advertise on social media to attract people to come to them in order to traffic them across the channel or wherever”. It is clearly ridiculous. I want to push the Government again to say what more they are thinking of doing to tackle that issue, which is clearly unacceptable to us all. Something needs to be done about it.

The Government have got themselves into something of a mess on the issue of “for gain”. We are having to debate whether a vessel that goes to save lives at sea needs a defence because, officially, it would be committing an offence. The words “for gain” target the offence on people smugglers and criminal gangs who do this on a regular and dangerous model, not on the captain of a ship who goes to the assistance of people at risk of drowning. We believe that “for gain” should remain part of the offence. It would be interesting to hear from the Minister how that has been clarified to protect anybody at sea who seeks to prevent life being endangered at sea. Something should be done about that and there needs to be clarification from the Government to provide certainty.

Amendment 62 seeks to ensure that nothing can be done in a way in which lives at sea are endangered. That is why we have tabled that amendment. I am grateful to the noble Baroness, Lady Jolly, for her work and support on that. Schedule 6 is where clarification is needed, because quite extensive powers have been given, including the power to stop, board, divert and detain. All of us would like more clarification on how that will take place. What does diversion mean and how is it going to happen?

In her response—I tried to ask this in Committee—can the Minister explain the difference between the MoD and the Home Office on this? The Home Secretary said that pushback was still government policy, although she did not call it that, but James Heappey MP as Defence Minister said it was not government policy and that the MoD would not do it. We all need to know: if we are giving these powers, who is in control? The MoD is supposed to have operational control, as I understand it, but it is obviously not going to ram or push anyone around with a huge naval ship. Presumably smaller coastguard vessels will be used to do that. Can the MoD order a person to do so? How is that going to work and who do they report to—the MoD or the Home Office? Which has the ultimate sanction?

So what we are seeking to do with Amendment 62, although we oppose that part of the Bill in total, is put something in the Bill that simply says that you cannot act against or divert a vessel in a way that would endanger life. Putting that into the Bill is both necessary and sensible. With that, I support Amendment 52 in the names of the noble Lord, Lord Paddick, and myself.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank noble Lords who have spoken. I start with Amendment 52, from the noble Lord, Lord Coaker, on the issue of people smuggling. I am glad to be able to talk about this topic, because it is at the heart of the many problems in this area.

The UK takes smuggling and irregular migration seriously and is absolutely committed to tackling organised immigration crime in all its forms. We work closely with near-neighbour countries such as France, Belgium and the Netherlands, and key international partners beyond Europe, to address this exploitative crime and tackle smuggling networks. To tackle the threat, we have in place a multi-agency organised immigration crime task force that brings together law enforcement, border guards, immigration officials and prosecutors, to tackle organised crime groups involved in people smuggling. The task force is currently working with partners in some 17 source and transit countries.

Additionally, there are already agreements in place in order to tackle smuggling and irregular migration. For example, in November last year the Prime Minister signed an agreement with Belgium reaffirming the two countries’ close partnership and commitment to tackling shared threats such as serious and organised crime, including human smuggling. The two countries are committed to strengthening the legal framework for co-operation on our law enforcement agenda with a co-operation agreement and a focus on information exchange.

We are committed to working with France to maintain the security of our shared border, and to tackle illegal migration, and this relationship is long-standing, supported by the Sandhurst Treaty. Most recently, last year a bilateral agreement was reached between the UK and France. The UK pledged to make a further financial investment of approximately £54 million in 2021-22 to tackle illegal migration in small boats, and last year’s investment saw the French doubling the number of officers patrolling the beaches.

In and beyond Europe, we are working to exchange existing capability and co-operation internationally to disrupt organised criminal gangs and dangerous people smuggling routes. The joint political declaration between the EU and the UK, agreed in December 2020, noted the importance of good management of migratory flows, and the UK’s intention to engage in bilateral discussions with the most concerned member states to discuss suitable practical arrangements, including on asylum and illegal migration.

We maintain frequent contact with law enforcement partners both in the UK and abroad as part of our investigations into people smugglers, and these are often highly sensitive and complex. It would not be appropriate to provide commentary on cases, or place information in the public domain that might compromise operations or alert the would-be perpetrators to initiatives designed to thwart their criminal enterprises. I am sure that noble Lords understand that.

Addressing the organised crime groups that facilitate illegal migration remains a UK priority. In July 2020, the Home Secretary and the French Minister of the Interior signed an agreement to create a joint intelligence cell with the aim of cracking down on people-smuggling gangs. Last year, over 23,000 crossing attempts were prevented by French law enforcement and, since the UK-France JIC has been established, we have with France dismantled 19 small-boat organised criminal groups and secured over 400 arrests—quite often the things that people do not hear about.

I would like to stress again that the UK already has a number of safe and legal routes in place, and those in need of protection should claim asylum in the first safe country that they reach, rather than paying those smugglers for dangerous journeys with risk to life. All countries have a moral responsibility to tackle the issue of illegal migration and it is fundamental that our international partners engage with us to enhance our current co-operation. We continue to highlight the importance of having effective returns agreements to deter people from making unsafe crossings.

The agreements currently in place with near neighbours reflect this, and the amendment will not help the Government’s continued efforts to tackle these crimes. In fact, it might hinder or stall the fruitful and open dialogue on these issues between the UK and its international partners, many of whom would not agree to their discussions and domestic activity aimed at reducing people smuggling being published to a domestic audience.

In summary, I cannot support the amendment, because it is not appropriate to provide a running commentary on the actions that are being taken to tackle people smugglers, and I am sure that the noble Lord knows that. Much of it is sensitive activity, operational and based on intelligence sharing, with the aim of protecting vulnerable people.

Turning now to Amendment 59, our purpose in removing mandatory proof of gain from this offence is to more readily target people smugglers, where organised crime gangs will conceal their tracks and make it as difficult as possible to prove that they are getting financial gain to the standard required for a successful prosecution.

Let me provide an example. A suspected facilitator was detected at Heathrow Airport with passports concealed on his person and in his baggage. A short time later, an undocumented female of the same nationality and coming off the same flight claimed asylum. Her appearance matched that of the image on one of the concealed passports. The suspected facilitator had £1,400 on his person, which was seized under PoCA 2002. A search of his home address resulted in many additional travel documents being found, along with approximately £3,500. The facilitator refused to answer questions. Despite the strong circumstantial evidence, it could not be established that the money was directly linked to the female asylum seeker’s facilitation and so, without being able to prove “for gain”, the prosecution could not proceed.

22:00

I understand fully the noble Lord’s fear that the wrong people may be drawn into the judicial process. To avoid this, there is a protection for a person working for organisations whose aim is to assist asylum seekers and which do not charge for their services, as well as for persons providing assistance to individuals in danger or distress at sea whose actions are on behalf of or co-ordinated by HM Coastguard. Defences are provided for seafarers where their assistance is not co-ordinated by the coastguard and for masters of vessels who bring stowaways to the UK. Organisations and individuals who rescue those in danger or distress in good faith will not be convicted for people-smuggling offences.

The way the defence works is that the seafarers simply need to state the facts of the rescue. Unless investigators have specific reasons to doubt a particular case, it will be assumed in such circumstances that they are telling the truth. Unless this is the case, they will not even be referred to the Crown Prosecution Service for it to consider charging the person with the offence. It will not be sufficient for the investigators to be sceptical; they will need to be able to disprove the facts put forward with specific evidence that is admissible and meets the “beyond reasonable doubt” test, ensuring a high degree of protection for the seafarer. I know that we went through this last time in Committee; I hope that tonight’s explanation clarifies what we discussed then.

Consideration of whether it is right to seek prosecution in such cases requires a comprehensive and objective assessment of all relevant circumstances, including evidence that the individual acted for gain. However, it is right that other circumstances be also considered. It is vital that prosecution be used as a deterrent where circumstances strongly suggest that the stated reasons for an individual’s actions are incredible and/or perverse, to the extent that no reasonable person could believe that they were acting in good faith. In common with any proposal to pursue prosecution, the weight of that evidence will be carefully considered by both the investigating officers and then, if referred, by the relevant prosecution authorities.

I turn to Amendment 60 in the name of my noble friend Lady McIntosh of Pickering. I fully understand the desire to protect seafarers who may need to act independently of Her Majesty’s Coastguard. The problem we have is that the amendment proposed by my noble friend would play into the hands of ruthless people-smuggling gangs, who can be expected to adapt their methods to allow them to use a purported rescue as a way to escape prosecution. I am sure that that is not what my noble friend wants. They could supply unseaworthy boats or boats with insufficient fuel that would allow migrants to make their way only a couple of miles off the French coast before running into difficulties—probably for an extra fee. As I have said repeatedly in this House, our intention is to stop people smugglers and not to target for prosecution honest people acting to rescue migrants in distress. However, we need to allow our investigators the opportunity to pursue these gangs, who will exploit any loophole in the law they can find.

I am grateful to the noble Lord, Lord Coaker, for saying that Amendment 61 is a probing amendment. We wholeheartedly agree with the intention behind it. We do not condone the behaviour that it seeks to address—that is, the advertisement of assistance for unlawful immigration to the UK on social media platforms. I do not think that this provision is necessary. There are laws in place which may already criminalise the behaviour that the offence of advertising assistance for unlawful immigration to the UK seeks to capture. Section 25 of the 1971 Act deals with facilitation of a breach of immigration law, which may include conduct such as advertising. Section 25(4) already provides that the offence applies to things done, whether inside or outside the United Kingdom.

In addition to this provision, we also have the benefit of Section 44 of the Serious Crime Act 2007. It is already an offence to intentionally encourage or assist another person to commit an offence, including pursuant to Section 25 of the 1971 Act. To determine whether an individual has committed an offence under any of these provisions, one must thoroughly review and consider the facts of each case, including the exact wording and content of the advert in question. The overlap with existing statutory provisions would need to be carefully considered to see what value, if any, an offence would add. Obviously, to bring a prosecution in this area is particularly complex, compounded perhaps by the extra-jurisdictional nature of the problem, coupled with the associated practical and legal challenges.

Turning our focus away from legislative measures and towards other measures to combat illegal migration, I have already set out the activities we are undertaking to tackle organised immigration crime with our European partners. As I have said before, it would not be appropriate to provide commentary on cases or to place information in the public domain. It is also worth noting that the Department for Digital, Culture, Media and Sport is leading on the Online Safety Bill. This aims to tackle harm facilitated through user-generated content and via search results. DCMS is also seeking to introduce the online advertising programme, which aims to reduce harms for consumers, businesses and society as a whole. Crucially, it will review illegal and legal but harmful content, as well as the placement of advertising online across all actors involved.

We do not disagree with the intention behind the amendment at all. The resistance is based on its effectiveness in bringing a solution to what is a quite complex problem. I hope that, for the reasons I have given, the noble Lord can withdraw the amendment.

Amendment 62 seeks to ensure that the maritime enforcement powers cannot be used in a manner that would endanger lives at sea. Safety of life at sea will of course always remain a priority for any interceptions of small boats crossing the channel to facilitate illegal migration, and their use will always comply with international obligations, including in the context of maritime safety. This extends to all potential encounters in respect of using the maritime powers when dealing with vessels carrying irregular migrants towards the UK. Officers exercising these powers are trained in the safe deployment of the tactics and their obligations in respect of human rights within the European Convention on Human Rights. In order to be appointed as an immigration officer, officials must successfully complete and pass a foundation course, which includes understanding the European Convention on Human Rights as it relates to the Human Rights Act and, as a result, their obligations in the context of exercising these powers.

Amendment 63 seeks to ensure that the maritime enforcement powers cannot be used in a manner inconsistent with the UK’s international legal obligations. As has been reiterated regularly, we remain committed to our international obligations and in our view, it is not necessary for us to restate those obligations with domestic law. Safety of life at sea will always remain the priority for any interceptions of small boats crossing the channel to facilitate illegal migration, and their use will always comply with international obligations.

This extends to all potential encounters in respect of using the maritime powers when dealing with vessels carrying irregular migrants towards the UK. Officers exercising these powers are trained in the safe deployment of the tactics and their obligations in respect of human rights within the European Convention on Human Rights when exercising their powers. Indeed, as I have said, to be appointed as an immigration officer, individuals have to pass certain obligations through a foundation course.

It should be further noted that the measures introduced by the Bill are designed to prevent unsafe routes to asylum and deter irregular migrants and people smugglers from using the dangerous cross-channel maritime routes, which are some of the busiest shipping routes in the world.

On the final question that the noble Lord, Lord Coaker, asked me about the MoD and the Home Office, my understanding is that they are working together.

[Lord Coaker (Lab)]

Before the Minister sits down, can I say two things? First, I thank her for her reply about the MoD and the Home Office working together; we look forward to seeing how that works out. Secondly, she gave a very helpful answer on Amendment 61, but can she ensure that all the laws she laid out are enforced?

[Baroness Williams of Trafford (Con)]

Yes. There is no point in making them otherwise.

[Lord Kerr of Kinlochard (CB)]

Is the Minister sure that it is undesirable to include Amendments 62 and 63? Her arguments were all about whether it was necessary or not. The French say that if something goes without saying, it is always better said. It seems to me that Amendments 62 and 63, in the Minister’s view, are unnecessary. She is probably right, because I cannot see the Border Force or the Royal Navy behaving in a rash way. But would it not be better—would it not be desirable—to have it on the statute book that we will respect maritime law and will not risk lives at sea?

[Baroness Williams of Trafford (Con)]

I have just explained why not.

Can I say something at this point? The noble Lord, Lord Paddick, and the Whip have pointed this out. Generally, after the Minister has spoken, the person who moved the amendment can ask questions of elucidation, but it is not generally the case that people who have not spoken in the debate then stand up and start adding to it. I know the noble Lord, Lord Kerr, is going to be cross with me yet again, but this has been quite a long and arduous process, and it would be helpful for the House if the Companion were to be followed.

[Lord Paddick (LD)]

My Lords, to follow up on that point, my understanding is that anybody is entitled to ask a question of clarification on something that the Minister has said but not to engage in debate, which is allowed in Committee but not on Report.

I thank the noble Lord, Lord Coaker, for his support and the Minister for her comprehensive response on these amendments. As I anticipated, the Government want to hide behind tipping off people smugglers as to what the Government are doing to tackle the problem. But how do we hold the Government to account if we do not know what is happening, as far as Amendment 59 is concerned, on the issue of “for gain”?

I understand the example the Minister gave of the chap who had money in his wallet, and so forth. One understands that prosecutions are not always possible, and at least the money was recovered. But there is a defence once charged in the Bill; there is not immunity from prosecution. So, somebody who comes across a sinking dinghy in the channel and rescues the asylum seekers could be subject to a prolonged investigation. The Minister talked about a full examination of the circumstances. It does not prevent the person being arrested, potentially, and being held either on police bail or under investigation for a long period to examine the circumstances. The defence in the Bill is only once charged.

22:15

So our real concern here is that these rescuers will hesitate to rescue these people unless and until they get coastguard involvement, for example. During that period of hesitation, lives could be lost. It will be for the noble Lord, Lord Rosser, to decide whether to divide the House on his amendment if, when we get to that point, he finds, as I do, the Minister’s explanation unsatisfactory.

On Amendment 62, I am very concerned. The noble Baroness says, “Don’t worry, all these Border Force people have been trained in the European Convention on Human Rights and they wouldn’t do anything to endanger life”. Yet the Bill provides Border Force officers with immunity from both criminal and civil litigation. Why would that be necessary if they are not going to do anything to endanger life? On the other hand, if the noble Lord, Lord Kerr, is right and it is obvious that they will not do that, why object to the inclusion of that amendment?

However, I beg leave to withdraw my amendment.

Amendment 52 withdrawn.

Amendment 53 not moved.

Amendment 54 had been withdrawn from the Marshalled List.

Amendment 54A not moved.

Clause 39: Illegal entry and similar offences

Amendment 55

Moved by

[Lord Coaker]

55: Clause 39, page 40, leave out lines 5 to 9
Member’s explanatory statement
This would prevent ‘arrival’ in the UK being an offence, rather than ‘entry’ into the UK.

[The Deputy Speaker (Baroness Fookes) (Con)]

If Amendment 55 is agreed, I cannot call Amendment 56 by reason of pre-emption.

[Lord Coaker (Lab)]

My Lords, I will be brief, because we had a long debate on this issue in Committee. It is, however, an issue that goes to the heart of the Bill—changing the definition of the offence to one of arrival rather than entry. I am, therefore, very pleased to move Amendment 55 and to speak to Amendment 58 in my name and those of the noble Lord, Lord Paddick, and my noble friend Lord Blunkett. This is a fundamental change to immigration law that many of us are worried will criminalise asylum, full stop. One can only imagine what effect a similar law would have in Poland now, with people fleeing across the border. No doubt the Minister will say that it does not apply in those circumstances, and so on. The fact is, however, that the Bill changes the offence from entering to arriving, which raises serious issues and has serious consequences for us all.

For example, aside from those seeking asylum, would this provision apply to a person who arrives in the UK with the wrong paperwork? They have arrived and they have broken the rules: would that be a criminal offence under the Bill? The Home Secretary has presided over this situation for a number of days but has just recently announced that people can safely bring elderly relatives and parents from Ukraine into this country. On the basis of this clause, would those elderly parents be considered criminals if they arrived here without the right paperwork? The Government’s proposed legislative changes have real consequences for real people, as highlighted by the recent horrific events in Ukraine.

This clause should be removed from the Bill on both principled and practical grounds. I have guidance that the CPS has announced, in consultation with the National Crime Agency, the Home Office and the police, which says that those seeking asylum should not be prosecuted under existing offences of entering the UK illegally. That is in recognition of the fact that it is not in the public interest, and that asylum seekers

“often have no choice in how they travel and face exploitation by organised crime groups”.

That is in a press statement from the CPS. The Government are asking us to widen the offence to include arrival when the CPS and Border Force do not believe that the existing offence should even be used. Similarly, the Government’s answer has been that the powers will be used in only exceptional and limited circumstances, such as where a person has breached a deportation order—in which case, we should pass a power for those circumstances.

It is not right to ask the House to pass these powers —on the basis that the Government’s own agencies say that they will not use them—or to criminalise a person who arrives in the UK to ask for asylum from war and persecution. It is late, but this change in the offence will have serious consequences for the way our asylum and refugee system works. I beg to move.

[Lord Green of Deddington (CB)]

My Lords, this is more important than it looks. Frankly, it is rather absurd that people can turn up in their tens of thousands on our beaches and there will have been no offence. That is not to say that they should be charged, but there must surely be some legal impediment to people just turning up.

[Lord Paddick (LD)]

My Lords, the Bill does two things. It criminalises and treats genuine refugees as second class if they arrive via a so-called safe third country. Also, this clause potentially criminalises everyone who arrives in the UK to claim asylum even when they have flown directly to the UK. It effectively criminalises all asylum seekers arriving in the UK unless they have been resettled through a government scheme—resettlement schemes that range from few and far between to non-existent.

From what the Minister said in Committee, I understand that the idea of the clause was to ensure that migrants crossing the channel in small boats who were rescued and brought to the UK could still be prosecuted, even though they had arrived legally. She said that the new offence would cover all claimants

“who arrive without the necessary entry clearance.”—[Official Report, 8/2/22; col. 1512.]

Someone who secures a visitor visa, for example, flies non-stop to the UK and claims asylum at the UK border would be guilty of an offence because their entry clearance was only to visit, not to claim asylum and stay permanently.

The Minister tried to reassure the House that this was not the Government’s intention, that the offence was intended to be prosecuted in only the most egregious cases and that the Government would be talking to the CPS. There are two issues with this. First, as the noble Baroness, Lady Chakrabarti, said in Committee, this is the very definition of an overbroad criminal offence that relies on the offence being prosecuted in only a subset of cases. The second issue is the potential for government interference with the independent Crown Prosecution Service. The next thing will be the Government telling the CPS to prosecute some political activists and not others. This is a very dangerous road to go down.

Amendment 55, in the names of the noble Lords, Lord Coaker and Lord Blunkett, to which I have added my name, would remove the offence of arriving in the UK without valid entry clearance from the Bill. We will vote with the noble Lord, Lord Coaker, when he divides the House.

[Baroness Williams of Trafford (Con)]

I thank both noble Lords for speaking to these amendments. I have listened carefully to the arguments raised by the noble Lords, Lord Coaker and Lord Paddick, and I appreciate the reasoning behind the amendments in their names, but I remain convinced that we must have offences which apply to arrival in the UK in addition to those of entry.

I cannot overstate that the differences between the terms “entry” and “arrival” are fundamental to how offences are identified and prosecuted. The definition in Section 11 of the Immigration Act 1971 concerning entry is based on assumptions that no longer address the methods that have emerged for migrants to evade our border controls.

It might help if I explained the effect of the amendment and the consequence of not getting it right. I remind the House that the Court of Appeal has held that an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom to make a claim is not entering or attempting to enter the country unlawfully in accordance with the definition of “entry” in Section 11. This means that individuals who step foot in the UK because their small boat was rescued by Border Force do not “enter” the UK in the technical sense. They simply “arrive”. Where there is no unlawful entry or attempt at entry, the unscrupulous people smugglers sending people across the channel in unseaworthy vessels that require rescue cannot be held to account for facilitating a breach of immigration law.

Amending these offences to refer to “enters” rather than “arrives in” renders them unworkable. It is wrong that an individual and those facilitating their journey should be able to evade sanction by allowing themselves to be intercepted and brought to shore. It encourages individuals to unnecessarily endanger themselves and others by travelling in small craft wholly unsuitable for the crossing.

If there is no offence of illegal arrival and if, as proposed in Amendment 58, this is not added as a breach of immigration law for the facilitation offence, then we will have practically eroded our ability to prosecute any people smugglers who are involved in risking migrants’ lives by putting them into small inadequate boats.

It is right that we should ensure that the tools exist to deter and prevent these actions for the good of all. We must provide the CPS with the ability to prosecute appropriate cases when in the public interest, so Clause 39 must refer to both those who enter the UK and those who arrive in the UK. I appreciate the concerns raised but am convinced that the proposed amendments, if accepted, would give only comfort to those who exploit and persuade people to make the perilous and unnecessary journey across the English Channel.

The noble Lord, Lord Paddick, made a point about interference with the CPS. That is not the case. An MOU between immigration and the CPS has been updated and will be published. With those words, I hope that noble Lords will be happy not to press their amendments.

[Lord Coaker (Lab)]

I thank the Minister for her reply. It was interesting in that reply, with respect to Amendment 55, that the whole raison d’être for the change to established immigration and asylum practice in this country is that the Government have lost control of migration across the channel. Panic has broken out, measure after measure has been tried, yet the numbers keep going up, and the public pressure to do something about it keeps going up. The Prime Minister has complained to the Home Secretary about it, so they have come up with a new measure which drives a coach and horses through the established procedures we have, has far wider implications than the channel, and affects every potential asylum seeker who enters the UK at the moment. That is why it is completely unsatisfactory to change things on the basis of what is happening, so I wish to test the opinion of the House.

22:30

Division 6

Ayes: 101

Noes: 96

22:41

[The Deputy Speaker (Baroness Fookes) (Con)]

As Amendment 55 has been agreed, I cannot call Amendment 56 by reason of pre-emption.

Amendments 57 and 58 not moved.

Amendment 58A

Moved by

[Lord Coaker]

58A: After Clause 39, insert the following new Clause—
“Secure reporting for victims of crime
(1) The Secretary of State must, in regulations, make provisions for the prohibition of automatic sharing of personal data of a victim or witness of crime for immigration purposes.(2) In section 20 of the Immigration Act 1999, after subsection (2B) insert—“(2C) This section does not apply to information held about a person as a result of the person reporting criminal behaviour which they are a victim of or a witness to.””Member’s explanatory statement
This new Clause would prevent immigration data being shared about a victim or witness of crime who reports an offence. This is to ensure victims are able to approach the authorities for assistance without fear of immigration repercussions as a result of that contact or resultant data sharing with immigration enforcement.

[Lord Coaker (Lab)]

My Lords, Amendment 58A, in my name and those of the right reverend Prelate the Bishop of London, the noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, would require the Secretary of State to prohibit the automatic sharing of the personal data of a victim of or witness to crime for immigration purposes.

This is a familiar issue to the House. It was a key issue raised in the Domestic Abuse Bill, when your Lordships voted to provide safe reporting for migrant victims of domestic abuse. In this Bill, this issue has been raised in particular due to the offence of arriving into the UK proposed in Clause 39.

The question I asked in Committee was: if a person is trafficked into the UK, is it the first duty of the police to recognise them as a victim of trafficking or as a criminal under Clause 39? I welcome that your Lordships’ House has just voted to remove the offence in question under Clause 39, but the issue of safe reporting continues to be of great concern.

A lack of safe reporting is damaging for victims, public safety and law enforcement because it prevents us tracking down and prosecuting dangerous people. This is not just the belief of Members of this House, it was the conclusion of the 2018 super-complaint. For victims of modern slavery, a mistrust of authority is a huge problem in encouraging people to come forward and identify themselves as a victim. What is practically being done to build that trust?

Rather than full safe reporting, the Government have opted for an immigration enforcement victims protocol, which they state will prevent enforcement action against victims while criminal investigations and proceedings are ongoing, and while the victim is being supported.

Organisations working on the ground with victims have raised that the protocol will not make victims feel safe to report offences, so it fails that first hurdle. Can the Minister address these concerns? In Committee, the noble Baroness, Lady Meacher, asked the Government to check whether it remains the case that one in two victims does not report crimes to the police for fear of disbelief and deportation. Does the Minister agree with that? What assessment have the Government made of the scale of the problem?

Safe reporting is a very real problem, which the amendment in my name seeks to address. I beg to move.

[The Lord Bishop of London]

My Lords, I have added my name to Amendment 58A. I am very grateful to the noble Lord, Lord Coaker, for introducing this new amendment. In Committee, I tabled an amendment looking to create a data firewall for survivors of domestic abuse. This amendment, however, is helpful in that it is broader in its scope and gets to the critical underlying principle: namely, that victims and witnesses of crime should not need to fear coming forward on account of their migration status. I and my colleagues on this Bench, including the right reverend Prelates the Bishops of Gloucester and Bristol, have highlighted these concerns, notably during the passage of the Domestic Abuse Bill.

22:45

The Government’s policies have been successful in at least one respect: they have created a real sense of fear and dread among migrants of approaching the authorities. The fear is of heavy-handed immigration enforcement. It includes detention, deportation, and being split from their family members. Many speak of this, so it seems that it is well founded. My concern is that it is not likely to be reduced by the Bill as it stands. These victims, who could receive support, or could actually help law enforcement in the fight against violence against women and girls, against domestic abuse, against FGM, against human trafficking or against a host of other evils, do not present themselves to the authorities. They are not prepared to be witnesses because they are fearful.

This is a real issue identified regularly by front-line agencies and is clearly a serious barrier to supporting victims and countering crime. This is the consequence of our own policy-making, and I am sure there must be a way to resolve it. This amendment provides one solution, which is why I support it. I hope that if the Minister rejects this amendment she will at least undertake to come back with an alternative route forward so that we are not forced to go through this again in future Bills.

[Lord Paddick (LD)]

My Lords, we support this amendment—I have added my name to it. The only question I have in addition to what the Minister has been asked so far is whether it is right that somebody who has been raped and who comes forward to the police as a victim, although she may not be subject to immigration control while a prosecution is ongoing, as soon the case is finished, she could be deported from the country because the police, at the end of the case, will share that victim’s immigration status? Can the noble Baroness not understand that victims are not going to come forward and report dangerous criminals who have raped them if that is the threat?

[Baroness Williams of Trafford (Con)]

My Lords, I understand the sentiment behind this amendment, which is to ensure that migrant victims of crime come forward to report that crime to the police and are not deterred from doing so because of concerns that immigration enforcement action might be taken against them. Our overriding priority is to protect the public and all victims of crime, regardless of their immigration status. Guidance issued by the NPCC, updated in 2020, makes it clear that victims of crime should be treated as victims first and foremost.

The NPCC guidance provides that police officers will not routinely search police databases for the purpose of establishing the immigration status of a victim or witness, or routinely seek proof of their entitlement to reside in the UK. Also, police officers must have grounds to suspect that a person does not have legal immigration status and must give careful consideration, on a case-by-case basis, to what information to share with the Home Office and when. The reasons for sharing information must be recorded and the victim advised what has been shared and why.

There can be benefits to sharing information as it can help to prevent perpetrators of crime from coercing and controlling their victims because of their insecure immigration status. Providing the victims with accurate information about their immigration status and bringing them into the immigration system can only benefit them. This amendment would prevent that.

It might help noble Lords if I gave one example of the negative effect of the amendment. The referral of information about a migrant victim or witness enables the Home Office to provide information on Home Office systems to assist the police and other authorities to establish vulnerabilities and safeguarding needs and to assess whether the migrant might be eligible to qualify for leave under the Immigration Rules or bespoke routes. Securing immigration status may allow eligible migrants access to a range of benefits, including health and housing provisions. There are several bespoke routes available to migrant victims and witnesses of crime which enable eligible individuals to regularise their status.

Under this amendment, the Home Office could not lawfully process any applications or requests for relief from enforcement action where details of the crime reported are relevant to those applications or requests, because the applicant’s personal data cannot be used for an immigration control purpose. The noble Lord, Lord Paddick, talked about rape, and examples would include applications or requests made for the destitute domestic violence concession, the foreign witness policy or the immigration enforcement migrant victim protocol, which is due to be introduced later this year.

I know that is not what the sponsors of the amendment had in mind, but, were it to be added to the Bill, that would be one of the effects. More broadly, noble Lords will understand that the Government are duty bound to maintain an effective immigration system to protect our public services and safeguard the most vulnerable from exploitation because of their insecure immigration status.

I have previously said that we need to focus on ensuring that victims with insecure immigration status can access the support they need, and that is the priority. Despite the best intentions, this amendment does not achieve the outcome it seeks. The question of leave to remain is inextricably linked to the conditions attached to that leave, so it is impossible to waive the no recourse to public funds condition in isolation from consideration being given to a person’s immigration status. What is more, it has been a long-standing feature of the immigration framework operated by successive Governments that only those with settled status should have access to public funds.

The public rightly expects that individuals in this country should be subject to our laws, and it is right that those with irregular immigration status are identified and that they should be supported to come under our immigration system and, where possible, to regularise their stay. We regularly help migrant victims by signposting them to legal advice to help regularise their stay.

This is the wrong amendment at the wrong time. If adopted, it would prevent victims obtaining the support they need, whether under the DDVC or other routes such as seeking asylum. I hope, on the point from the noble Lord, Lord Coaker, about listening, that the noble Lords have listened and reflected carefully on the unintended consequences of their amendment and will agree to withdraw it.

[Lord Coaker (Lab)]

Having listened carefully to the Minister, particularly about it being the wrong amendment at the wrong time, I will withdraw the amendment. But just let me very quickly say that, whatever the rights and wrongs of the amendment, and whatever the rights of the wrongs of what the Minister has just said, there is a very real problem out there of people who are victims of crime who are terrified of going to the police or the authorities because of fear of their immigration status. Whether that is right or wrong, that is the reality of the situation. I know the noble Baroness knows that. There is a problem that needs fixing. If the amendment is not the right way of doing it, we need to find another way of building that trust so that we do not have victims who are frightened to come forward to the authorities. With those few remarks, I beg leave to withdraw the amendment.

Amendment 58A withdrawn.

Clause 40: Assisting unlawful immigration or asylum seeker

Amendment 59

Moved by

[Lord Coaker]

59: Clause 40, page 41, line 40, leave out subsection (3)
Member’s explanatory statement
This would give effect to the recommendation of the Joint Committee on Human Rights to maintain the current position that the offence of helping an asylum seeker to enter the United Kingdom can only be committed if it is carried out “for gain”.

[Lord Coaker (Lab)]

I beg to test the opinion of the House.

22:55

Division 7

Ayes: 86

Noes: 84

23:08

Amendment 60 not moved.

Amendment 61 not moved.

Schedule 6: Maritime enforcement

Amendment 62

Moved by

[Lord Coaker]

62: Schedule 6, page 104, line 13, at end insert—
“(1A) The powers set out in this Part of this Schedule must not be used in a manner or in circumstances that could endanger life at sea.”Member’s explanatory statement
This would give effect to the recommendation of the Joint Committee on Human Rights to ensure the maritime enforcement powers cannot be used in a manner that would endanger lives at sea.

[Lord Coaker (Lab)]

I beg to move.

23:09

Division 8

Ayes: 83

Noes: 76

23:21

Amendment 63 not moved.

Consideration on Report adjourned.