Nationality and Borders Bill (Second sitting)

Anne McLaughlin Excerpts

Committee stage
Tuesday 21st September 2021 Public Bill Committees

[The Chair]

Anne and Stuart, you have about a minute to ask your questions and to get some answers before I bring in the Minister.

[Anne McLaughlin (Glasgow North East) (SNP)]

Q I had a question for Lucy, which she has partly answered, so I will check with her offline—I thank her for partly answering it. I know that the JCWI has concerns about statelessness, so perhaps Zoe will say something about that. Also, this morning, we talked about the Bill being at odds with our international obligations, so will you comment on the fears that the British Red Cross expressed this morning, that if we do this—you referred to it yourself—there could be a domino effect? If we start to say, “Not on our doorstep”, France could say the same and so, even more worryingly, could countries where most people end up, such as the countries that border Afghanistan, where the hon. Member for Stoke-on-Trent North said the genuine refugees come from. We have asked countries to keep their borders open, but what if they start to say, “No, we’ll not keep our borders open if the UK isn’t going to or France isn’t.” There will be that domino effect, which is worrying.

[The Chair]

Finally, Stuart.

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[Bambos Charalambous]

Q Final question from me. Do you not think it is right that somebody who claims to be a victim of trafficking should be treated as a victim and that if they choose to disclose something later, that should not count against them?

Assistant Chief Constable Dave Kirby: I think what you are getting at is correct. The reason is that some of these people are under a huge amount of duress, including their families being threatened. Their families remain in Albania and other countries, so they cannot protect them, and violence is often used by these groups. If people are told not to claim that they are a victim and to go through the criminal justice process, and then at some point change their minds for whatever reason, I think that needs to be allowed and not counted against them. The difficulty is, of course, those who would exploit the system and raise a defence at a late stage in order to cause complications for the prosecution and who are in fact criminals, sometimes at a fairly high level. That is where the police and other agencies always need to be cognisant that that defence can be raised and to run those parallel investigations.

[Anne McLaughlin]

Q Good afternoon. I will start by saying that none of us here can possibly understand how complex the work is that you and your colleagues do. I am trying to understand some of it. I know that recently you said that you have spotted a trend of people who were arrested in drug busts claiming to be victims of slavery when you did not believe that to be the case. I think that, as a result of those concerns, the Home Secretary is overseeing plans to roll out a new public order definition that will allow police forces to refuse NRM protection to those committing serious crimes.

That turns the presumption of innocent until proven guilty on its head. Do you think that that is the most helpful way to go forward and, if so, are there other circumstances in which we should not offer support to people because we do not believe them, before they have had the opportunity to prove otherwise? If you do not think that it is helpful, how would you amend the legislation to be more helpful, while recognising that we do not know whether people are victims of slavery at the point at which they are arrested?

Assistant Chief Constable Dave Kirby: There are a few areas there. First, the existing legislation does not apply to a lot of crime types in any event—some of the more serious crime types that you mentioned, such as kidnapping and manslaughter, and lots of offences included in the Offences Against the Person Act 1861 and firearms legislation, so some of that is there already. I do not think that it is right to say that policing is turning the presumption of innocent until proven guilty on its head. What I would say is that, where we already have information and intelligence in relation to individuals and their place within a criminal hierarchy, at that point it may be appropriate to turn that presumption on its head.

To illustrate, there is a recent case in Derbyshire where an Albanian gang has been dismantled only in the last couple of weeks. There have been 24 arrests, and I think 12 of those people were Albanians, running cannabis growers and other types of criminality in the region. More than one of those people claimed to be victims, but we had a covert investigation behind us that showed their level of control, their ability to communicate, the resources that they had and various things that clearly went against that claim. Absent that information and intelligence, I do not think that we would say, “We don’t believe this person,” in the first instance. An investigator should, and in all investigations does, go into that situation with an open mind. This person could be a victim or could, in fact, be a criminal. They start at that point, not on one side or the other.

The other part of your question was about what we do to make things easier for investigators to understand the true position. I think that, again, that would be some sort of duty to co-operate, because it is quite difficult if somebody claims to be a victim and then, for example, refuses to provide a phone passcode, and so on. Perhaps a duty there would assist us. I mentioned whether a person should have to declare straightaway, because often there are delays, but I think that a lot of genuine victims would suffer that way.

[Tom Pursglove]

Q Clearly it is critical that our resources are focused on genuine victims of modern slavery. Are you able to share any examples or concerns that you have about individuals or groups taking opportunities to misuse the national referral mechanism by falsely claiming to be victims?

Assistant Chief Constable Dave Kirby: Absolutely. I cannot give you names right now. That perhaps would not be appropriate, but in various areas of criminality we have seen that, and again it is for various reasons. One reason that I have alluded to already is to hamper prosecutions, as a tactic. Quite often we can get around that as investigators because we have been looking at the various areas that would prove or disprove a person’s status throughout, but sometimes the defence is raised in order to obtain access, we believe, to other services that we would of course want to provide to genuine victims, such as access to housing and potentially some assistance in securing visas and so on.



We do see those things. I can only say that in some cases we have proved that those people are not victims—for example, through covert activity that was already in place because it was a part of larger operations or because of things such as telecoms investigations and so on, sharing that work. There is a lot of technical detail in how it is done, but we have detected people exploiting the system for those two reasons: benefits and to avoid prosecution.

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[Bambos Charalambous]

Q On the Border Force issue, what the Bill suggests doing is pushbacks, which many people would agree would be a dangerous activity. What are your thoughts about pushbacks and how that sits with maritime law?

Tony Smith: I think it is highly dangerous. I am in touch with former colleagues from the Australian Border Force, which is often held up as a model for pushbacks. That was an entirely different model from the one that we are proposing. These are dangerous waterways and very vulnerable vessels. I fear for the worst. We have already had drownings. They are not as well reported as they should be but we have had them. We do not know how many, of course, because bodies have not always been retrieved. We will certainly see the smugglers resort to tactics, as we saw in Australia, such as vessels literally being holed so that they sink and lifejackets being thrown overboard in the trust, hope and expectation that those on board will then be rescued, which we have an international duty to undertake.

The only real way out of this is to come to an accommodation with the French Government, which I have been advocating for some time. There is provision under article 98 of the UN convention on the law of the sea for countries to establish regional arrangements, so it is possible, with political agreement with France, that we could have joint patrols on the English channel. We could have British officers on their vessels and they could put French officers on our vessels, but the premise would be that if you are returned to either side, there is no risk of refoulement because both countries are signatories to the 1951 refugee convention and you would get a full and fair asylum hearing on either side. I do think that is possible, but there is a reluctance on the part of the French Government to go down that road at the moment because they have significant immigration problems of their own. They cannot control their own southern border because they are part of the Schengen group and there is a significant lobby in France saying, “Why would we stop people crossing to the UK when we have plenty of irregular migrants already coming into France?”

[Anne McLaughlin]

Q Good afternoon. You have already answered some of what I was planning to ask you about. I read recently that you said the preservation of life should be the UK’s top priority. You have repeated that today, so I do not need to ask you the question about whether you support the pushing back of children, men and women who arrive in boats, because you clearly do not.

You talked about Australia, which I was going to bring up. I am sure I read recently that Australia also criminalised those who rescued people who were seeking asylum and arriving by boat, but made the exception that if the vessel was not seaworthy they would not be criminalised. I think that is what you referred to when you talked about the traffickers putting holes in the boats so that they became dangerous. That sort of thing assists traffickers now that they know what to do. First, would you caution the UK against making that caveat and perhaps urge it to drop the pushback thing altogether? Would you caution against the criminalisation of people who rescue people at sea?

Tony Smith: We could spend a lot of time talking about the Australian model, which we do not have, but you are talking about a much, much longer stretch of water there. The Australian Border Force—I was down there helping it to set up—took the view that its maritime response was significantly different from ours. The vessels it deployed are significantly different from the UK Border Force cutters. The cutter fleet that we have in the Home Office are legacy Customs cutters. They are not designed to bring people ashore or to process people. They were even processing people on some of the Australian vessels to determine whether they were admissible to the asylum system before they brought them ashore. In the end, they invested in vessels of their own. They could then move the individuals from the unseaworthy vessels that they were encountering into their own vessels that they had purchased and escort them back to Indonesian waters. There was a significant investment by the Australian Government in doing that, which did work, but trying to compare that with what we see on the English channel is a different question.

Yes, of course we should preserve life, and I think the French should do that, too. There is an obligation on both sides of the channel for us to work together to find a way to stop human smugglers. The current model simply demands, “You pay €5,000 to me and I will put you in an unseaworthy vessel, and I really don’t care whether you drown or not because I have got my money.” I am afraid that is the way the mind of the human smuggler operates. They are getting the upper hand, we are seeing numbers going up and we will see more drownings. It is difficult to lay this at the door of the UK Border Force, who have a lot of other pressures on their resources at the moment.

We need to find a way, if we can, of getting common sense to prevail on a joint strategy with France. We already have a significant number of bilateral treaties with the French that have survived Brexit and that would enable us to fix this problem, but I do not think we have been able to find anybody in a senior position in the French Government who would go that far.

[Anne McLaughlin]

Q My second and final question is on international relations. The UK lags behind other European countries in terms of numbers. The British Red Cross said that we were the 17th highest in terms of the number of people that we took in. The Bill basically says to the French, among others, “Not in my backyard—your problem”. What does that do to international relations and what could the UK Government do? I accept what you say about other Governments having to come into these bilateral agreements, but what could the UK Government do to reach out to other countries in Europe to try to work on this together?

Tony Smith: I would dispute those figures. We are probably about fifth in Europe in terms of asylum intake, but you are right that other countries have more asylum applications every year than we have. That is not necessarily because those numbers have been invited by the EU to go and live there. It is because they are unable to control their own external frontier. Because of the Schengen arrangement, asylum seekers can choose where they would like to go. Many drift north to Scandinavia, Germany, Holland or France, where they would rather be than in some of the southern or eastern European states.

The EU has its own difficulties in determining the allocation of asylum seekers across the Schengen zone because they do not agree among themselves about how they should be distributed. The bigger question is not necessarily a European one but a global one. No doubt you will hear evidence from experts on this. The need for international resettlement is a huge problem. We have seen it in Afghanistan; we have climate change; and we have migratory pressures coming up from South America to the US border. People are going to continue to move in great numbers over the next 20 or 30 years. The question is how the western world is going to cope with that.

I am quite a big fan of the refugee resettlement programme. UNHCR has been going out to western countries for some years saying, “We have 80 million people displaced, and 40 million in different countries in our camps already. These are refugees who have already fled war zones whom we would like you to take.” Even though we were taking only about 5,000 or so, we are still third highest in the world, so we are not really getting to grips with the global challenge of resettling refugees through the resettlement route. It has picked up a bit since Afghanistan, and we are doing more. There is certainly evidence that we are trying to do more, and I think we could become global leaders on refugee resettlement programmes, but it is going to be difficult politically for anyone to sell that when we are seeing uncontrolled migration across the English channel.

It is finding the balance. How can we help to contribute to genuine resettlement for genuine refugees, but at the same time take back control of our borders, which is clearly the Government’s stated intent?

[Tom Pursglove]

Q Is it reasonable to think, based on your many years of experience, that if we do nothing—if we just stand back from the challenge of illegal crossings—the number of crossings will increase and crossing will become even less safe? Do you think that the principle of deterrence is important in all this?

Tony Smith: I do think that. It is absolutely important in all this. While I would not defend the turn back strategy, I can understand why the Government are looking at those kinds of measures to stop the boats. It must be extremely frustrating not to be able to do anything about the ever-increasing numbers, particularly when a succession of Home Secretaries have come in saying that that was what they would do. A number of my successors—civil servants—have given evidence to the Home Affairs Committee, saying that they were going to make the route unviable. I am afraid it is not within their gift to make the route unviable within the current frameworks. One would hope that the new legislation would change things. It certainly changes the dynamic. We can now say, “We know that you arrived by this route. We know that you are not immediately fleeing persecution.”

I am not a big fan of the criminal justice system for migrants. It has not really worked. I am a fan of it for smugglers and facilitators, but putting migrants in prison is not necessarily going to be the answer and will lead to more challenges. The question is how we disrupt the smugglers and break that business model. The only way is to start seeing people going back to France. Then people will see that there is no point putting their life at risk in a small dinghy. There will be no point in more and more of them spreading up to Calais because that business model is broken. The big difficulty for the Government is how to persuade the French that we ought to have a policy like that and negotiate an agreement, and how to counterbalance that with the other problem of significant numbers of people around the world seeking resettlement. How are we going to contribute to responding to that?

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[Anne McLaughlin]

Q You have said a number of times that having safe and legal routes is one of the things that will reduce what some people refer to as the pull factor. I am going to dispute the idea of the pull factor, because of a report a few years back by the Refugee Council that demonstrated that the vast majority of people making their way to Britain had no clue what lay ahead. They just had some idea that Britain would welcome them. I wonder if one of the things we could do is show them clips of Conservative MPs talking about what kind of welcome they will get. Maybe that would reduce the pull factor. Anyway, that was not my question. Are you surprised that there is nothing in this legislation about safe and legal routes? There is nothing about increasing or improving them.

Rob Jones: Thankfully, that is a policy issue, which I do not need to deal with. It is for others to deal with. I can give you my perspective on the impact of tackling organised crime. In relation to the other factors, it is helpful. No doubt, those considerations are under way, but that question is best asked to others.

[Anne McLaughlin]

Q You talked about the concurrent effort needed. I suppose you do not want to agree, but I am going to ask you anyway. Do you agree that it would be better if, at the same time as tackling the small boat crossings, we were doing something as substantive as this legislation on beefing up the safe and legal routes throughout world?

Rob Jones: Concurrent pressure against all of the factors that create a scenario in which thousands of people cross the channel in unsafe boats is absolutely something we need to.

[The Chair]

If there are no further questions from Members, I thank the witness for his evidence.

Question put, That further consideration be now adjourned. —(Craig Whittaker.)