Nationality and Borders Bill

Lord Paddick Excerpts

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

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.

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[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.

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[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.

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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.