Border Security, Asylum and Immigration Bill (Fourth sitting)

Chris Murray Excerpts

Committee stage
Tuesday 4th March 2025 Public Bill Committees

[Dame Angela Eagle]

The Opposition have asked which bits of the commander’s functions may be delegated and to what level. In theory, it can be any of them. We are trying to ensure that there are no issues in primary legislation that would mean something is prevented from being delegated that would have been effective.

I do not think that the hon. Member for Stockton West would expect me to go into great detail about what might happen with delegation in the future, but I can give an example. If there was to be a high-level visit to Iraq to conclude a memorandum of understanding on returns and activity against organised immigration crime, and the commander was detained elsewhere, it would be possible to delegate that function to somebody who would then go in his place.

We are trying to get to the stage in legislation where we create the commander and give flexibility as to how the job can be put into effect in scenarios that may crop up, without being too prescriptive. I hope that the hon. Member for Stockton West will accept that example of the sort of thing that may crop up.

[Chris Murray (Edinburgh East and Musselburgh) (Lab)]

It is quite interesting to hear the points that the Minister is making, considering the conversation we had this morning about the commander being functionally a civil servant. Although I was never officially a civil servant in the proper sense, from my experience it is really important that senior leaders within the civil service are able to avail themselves of delegation capacities as needed.

It can be done for many reasons. It could be a bandwidth issue, where someone has multiple priorities and needs to delegate to someone else because they are not able to be in two places at once—and looking at the responsibilities of the commander as set out in the legislation, there are a lot. It could also be a resourcing issue or because of a conflict of interest. That brings me to the point I was making about this being a civil service role; there need to be proper conflict of interest considerations. That is what we are taking account of here.

[Dame Angela Eagle]

My hon. Friend is right that circumstances often crop up that require this kind of provision. All clause 7 does is allow it, so I commend the clause to the Committee.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clause 8

Designation of an Interim Border Security Commander

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Pete Wishart]

I do not think anyone would assert, contend or propose that. Everybody is subject to the laws. Clauses 13 and 14 are designed to create new ways to criminalise people. I have listened carefully to the Government’s rhetoric, and I believe the focus and ambit of these new laws is to smash the gangs and disrupt their business, but they will not do that. The only people who will be ensnared, entrapped and put on the wrong side of these laws are asylum seekers. I say candidly to the hon. Lady that we are creating new ways to further criminalise the most wretched people in the world, and that is a grotesque ambition for this Government.

I tried to find out from the senior law officers who gave evidence how many members of gangs would be apprehended and brought to justice as a result of these new clauses. The law officers could not tell me. I do not blame them for that; they probably did not know. I suspect it would be really difficult even to make some sort of guess about how many criminals would be brought to justice as a result.

I also asked what would be the ratio of ordinary asylum seekers to gang members—the ones who secure this vile trade—but the law officers could not tell me. However, I know and suspect, as I am sure they do, that nearly everybody who falls foul of the clauses will be an asylum seeker. I suspect they know—I do, and probably everybody else does—that very few gang members will be brought in front of any of our judiciary as a result of the provisions.

[Chris Murray]

There is an issue around taxonomy and categorisation here. Anyone is entitled to claim asylum. It is a universal human right. Anyone from any nationality and background, whatever their criminal history, is entitled to make a claim to be an asylum seeker. It is possible to be a member of a criminal gang and plan on claiming asylum. From my 15 years of working in the asylum and immigration service, I know it is an undeniable point of fact that some people exploit that to delay or get around the system, and we must act on such abuse.

Does the hon. Member agree that we have to be careful in our classifications? There is a distinction between an asylum seeker who has a genuine claim to refugee status but who might not be eligible, and someone exploiting the system.

--- Later in debate ---

[Katie Lam (Weald of Kent) (Con)]

As hon. Members will have read, clause 13 creates a new offence of

“Supplying articles for use in immigration crime”.

The offence has two limbs. First, that the person supplies or offers to supply those articles to another person, and secondly that, when they do so, they know or suspect that the item will be used in connection with any offence under sections 24 or 25 of the Immigration Act 1971—illegal entry and assisting unlawful immigration, respectively. I have a question for the Minister on the reasonable excuse elements of the clause. It is a defence for a person charged with this offence to show that they had a reasonable excuse. Subsection (3) defines a reasonable excuse as explicitly including that,

“(a) their action was for the purposes of carrying out a rescue of a person from danger or serious harm”,

which seems reasonable, or,

“(b) they were acting on behalf of an organisation which—

(i) aims to assist asylum-seekers, and

(ii) does not charge for its services.”

That second defence seems to the Opposition to create a large loophole in the law. Does the Minister accept that these defences will have the effect of exempting non-governmental organisations from criminal charges for helping asylum seekers to cross the channel? Why would the Government seek to do that?

The defence categorises organisations that aim to assist asylum seekers into those that do not charge for their services and those that do. Surely this criminal offence is a criminal offence regardless of who is responsible; why would it be any less criminal if someone does it voluntarily? Why is making money from something the determinant of whether it is a crime? As we heard in evidence, charities can be “mischievous”—I think that was the word used—in their activities and in how close they come to facilitating illegal crossings to the UK. Does the Minister accept that the activities of some charities can veer close to the line of facilitating illegal entry? If so, what do the Government intend to do about it?

The threshold for the defence is low. The accused simply needs to provide sufficient evidence to raise an issue, and the contrary must not be proved beyond reasonable doubt. Might that be why the Home Office impact assessment considers that between four and six prison places—I believe the central estimate is five—will be required per year once this steady state is reached? The Home Office has lauded the new powers and offences in the Bill as being key to smashing the criminal smuggling gangs, but it does not appear to consider that many people will be convicted under the new offences. How can both those things be the case?

Clause 14 creates the new criminal offence of handling articles for use in immigration crime. The person has to receive or arrange to receive a relevant article, remove or dispose of an article for the benefit of another person, or assist another person to remove or dispose of a relevant article. Again, the clause provides the same defence to the offence as clause 13 does—namely, that the action of the accused was

“for the purposes of carrying out a rescue of a person from danger or serious harm”,

or that they were acting

“on behalf of an organisation which—

(i) aims to assist asylum-seekers, and

(ii) does not charge for its services.”

I therefore have the same questions for the Minister about this defence as I did for the defence in clause 13.

Clause 15 provides a definition of “relevant article” for the purposes of the new offences in clauses 13 and 14. There are exemptions for food and drink, medicines, clothing, bedding, tents or other temporary shelters, and anything to preserve the life of a person in distress at sea or to enable such a person to signal for help. Will the Minister set out the kinds of articles that she therefore expects to be captured by the offences in clauses 13 and 14? It would be useful to know what items the Home Office, Border Force and the police specifically wish to disrupt. There is also a power in clause 15 for the Secretary of State to amend the list of relevant articles. Will the Minister explain what purpose that power serves? The list of what counts as a relevant article is almost limitless, so does she envisage that the power will be used primarily to create exemptions?

The hon. Member for Perth and Kinross-shire has tabled amendment 3 to specify that if a person is an asylum seeker, they cannot commit the offence in clause 13: supplying articles for use in immigration crime. It would be good to understand why the Scottish National party does not think it is possible for asylum seekers to commit that offence. How are law enforcement officers supposed to know that a person is genuinely an asylum seeker—and even if they are, what happens if their application is subsequently rejected?

The hon. Gentleman also tabled an amendment to require the commander to include in their annual report information about how they have paid due regard to the Human Rights Act 1998 and the European convention on action against trafficking. My views are the same as those set out by my hon. Friend the Member for Stockton West on amendment 1.

[Chris Murray]

I apologise for my longer interventions, Mr Stuart; I will try to bundle them all into this speech.

One of the most important things that we heard during evidence was from Dr Walsh from the Migration Observatory. He said that demand for cross-channel crossings is essentially inelastic. Even if the price of a crossing doubles, there will still be demand for it; people rise to meet that price. That tells us that deterrence and disruption of the demand alone will never be enough to tackle the horrors that we are seeing in the channel at the moment. We must also disrupt the supply of ability to cross the channel. That is an important part of the Bill, and these clauses go right to the heart of it.

On the point about criminalising all asylum seekers, ahead of oral evidence, I read carefully the submissions we have had from organisations I have worked with in the past. I found the testimony of the Crown Prosecution Service very convincing. It stated clearly that in addition to the primary legislation, the CPS will produce guidance that will set out both the public interest threshold and evidential test that it would seek in order for a case to go to prosecution. It was very clear that the kind of hypothetical examples set out by the hon. Member for Perth and Kinross-shire would not meet that threshold.

On the point about decriminalising all asylum seekers, to clarify the point I was trying to make in my interventions, during a crossing anyone can declare themselves an asylum seeker. That then breaks down into different categories: someone who is genuinely eligible for asylum in the UK and will, when they go through the process, get refugee status; someone who is genuinely seeking asylum, but will not meet the threshold when they go through the process and will not get such status; and someone who knows that they are ineligible, or might be eligible on some counts, but is engaged in the criminal act of facilitating illegal entry into the UK and putting those other people’s lives in danger. At that moment, it is not possible to distinguish between those people; the asylum process is there to do that.

Were we to accept the premise of the hon. Gentleman’s amendment, it would be a wrecking amendment. I know it is not intended that way, but it would in reality be a wrecking amendment to any kind of intervention on a crossing at sea.

[Pete Wishart]

The hon. Gentleman neglects to mention one thing. He is correctly summarising what is happening with the amendments, but it is already illegal to arrive into the UK illegally—that is what is happening. That is why so many people have been arrested and are now being processed and sent back. It is illegal to come to the UK just now if you have no means to support yourself when you are here. All the Bill is doing is finding new ways to criminalise people. I do not know what the point of the new clauses is, when all that is already happening.

[Chris Murray]

The hon. Gentleman is making an important point, but I do not accept that the proposal is creating new criminal offences for all asylum seekers or for all people; it is creating new criminal offences for those engaged in the exploitation of people and the trafficking or smuggling of them across the channel in great danger. We cannot allow that to continue if we care about those people’s lives at all.

In the constituency of every single MP in this room, there will be a cannabis factory where a probably under-age Vietnamese child is working at cultivating cannabis. If they arrived in the past two years, they came across in one of those boats. Significant, serious organised crime networks are exploiting the vulnerability of those people in order to facilitate such crossings. This proposal is how we stop them doing it, and that affects every one of our communities.

I am aware that I am testing people’s patience, but I want to make two final points. The first is about the criminalisation of organisations that help asylum seekers. That is an important point, and the distinction has to be clear. I did have concerns about this measure being in the Bill, but the evidence sessions completely reassured me. The testimony of the CPS was that asking about the weather in Dover when in Calais, and those kinds of things, would not be facilitating immigration crime. The testimony that the National Crime Agency is using these measures to tackle serious and organised crime makes it clear what the purpose of the clauses is.

The hon. Member for Kent—

[Katie Lam]

Weald of Kent.

[Chris Murray]

Weald of Kent, sorry—that is quite far south for me. The hon. Lady made a point about the sector and charging for services. Some organisations out there are charitable and provide services for free, and some organisations charge enormous fees and are extremely exploitative. That is where that distinction comes from. That would be my interpretation of the legislation.

[Katie Lam]

Presumably, though, it seems reasonable to think that there could be a third category, which is people who charge fees that are not exorbitant.

[Chris Murray]

That is absolutely right—but, in my experience of the channel coast and of working in the refugee sector, those do not exist. Anyone who was to do that would probably be giving immigration advice, which is a regulated component under UK legislation. That would be structured differently from someone on the coast or on a boat or vessel, in the way that this legislation sets out. I am happy to be corrected, but that would be my interpretation.

Finally, I come to the point about mobile phones and the different things listed that can be seized when a vessel is disrupted. Last week, we heard so much evidence—there is so much evidence out there—that the crossing of the channel is the final stage in a very long process involving criminal gang networks, organised crime networks and just immigration networks that stretch through Europe, including allied countries and countries very difficult for us to have relationships with. We know that those smuggling networks are all orchestrated by mobile phone, so it is important that the Bill incorporates that.

On the concerns that the hon. Member for Perth and Kinross-shire about criminalising the most wretched people in the world, the exemptions in the Bill are clearly humanitarian. They are clearly the kinds of things that people need to survive on a dangerous sea crossing or on their arrival. The only exception is their phone. It is because we know that the data taken from those phones is critical in the fight that phones are excluded. That is why it is important that that component remains in the Bill.