Illegal Immigrants (Criminal Sanctions) Bill

Mark Harper Excerpts

Friday 17th January 2014 Commons Chamber

[Mr Nuttall]

It is certainly the largest developed nation.

I do not want to detain the House for too long, because I am keen that the Bill should proceed through the House today.

[The Minister for Immigration (Mr Mark Harper)]

I will be brief, but I cannot resist intervening, because I do not often have the chance to put right my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) on a constitutional matter. Her Majesty the Queen is of course the sovereign of 16 nations, not only six.

[Mr Nuttall]

rose—

--- Later in debate ---

[The Minister for Immigration (Mr Mark Harper)]

I have listened carefully to the debate. Although the Bill is not enormous, a wide range of issues have been touched on, including the scale of illegal immigration to Britain, why people may come here and the effectiveness of Government policy in removing people. My hon. Friend the Member for Christchurch (Mr Chope) spoke about some of the visible enforcement activity that he has seen.

Before I turn to the detailed provisions of the Bill, it might be helpful to the House if I set out a little of the context, which Members can bear in mind when they consider how they will vote on the Bill if my hon. Friend decides to test the will of the House. Immigration is an important subject, as is the question of those who have no right to be in Britain. Some illegal immigrants never had the right to be here, but still entered the United Kingdom. A more significant number of immigrants came here lawfully, but overstayed their welcome.

Why are people concerned about this matter? It is perfectly reasonable to be concerned, given the significant amount of migration, both legal and illegal, that we saw during the period of the last Labour Government. We only have statistics on legal migration because, by definition, it is very difficult to get a good handle on the level of unlawful migration. Net migration during that period was 2.2 million people. Despite what Labour likes to lead people to believe, the majority of those people came from outside the European Union, so it had full powers to do something about it.

We know that people are concerned about immigration and that they want tougher immigration controls. That was my party’s policy before the election and it is this Government’s policy. We have had a fair bit of success, with net migration down by nearly a third since 2010. I am afraid that it is not true, as the hon. Member for Croydon North (Mr Reed) said, that that is to do with a change in the number of British citizens. The most significant change is the fall in immigration. That has been put clearly on the record by the independent Office for National Statistics. Non-EU immigration to the United Kingdom is at its lowest level since 1998.

To be frank, it is true that the most recent figures showed a small increase. That was largely because of an increase in migration from the EU. However, that has come not from the parts of the EU that have recently been giving the press in this country the vapours, but from more traditional EU member states such as Spain and other countries in southern Europe which have economies that are performing less well. It is important to put that in context.

On illegal migration, which is the subject of the Bill, I want to put two points to my hon. Friend the Member for Christchurch that I hope he will find reassuring. A significant number of people who want to come to the United Kingdom illegally try to get here through our sea ports or the channel tunnel. He will be familiar with the fact that we have juxtaposed controls, which means that our border is effectively in France. We check freight vehicles, passenger transport that comes through the tunnel and transport on the ferries. Our UK Border Force officers, whom he mentioned, do an excellent job of preventing people from entering the UK illegally in the first place. In the year to the end of March 2013, for example, they prevented more than 11,000 people from entering. That is important, because if people cannot enter the United Kingdom illegally in the first place, the provisions in his Bill are unnecessary. We stop them at the border, which, with the juxtaposed controls, is in France, so they never get to our shores.

[Mr Chope]

The Minister says that 11,000 people were prevented from coming, but how many of them have subsequently got in without detection?

[Mr Harper]

My hon. Friend asks an unanswerable question, but it is also worth considering the checks that our immigration enforcement officers make. When they encounter people who are working illegally, they look at when those people entered the United Kingdom to test whether they got through our juxtaposed controls. When we examine both sets of people—those we stop and those we encounter in-country—the evidence is that our controls are effective. I would not pretend that they are 100% effective, but they are very effective in reducing the number of people coming into the country.

As I said, most people who are in the United Kingdom illegally did not come here illegally. They came here lawfully but for a limited period. They are either a visa national—someone from one of the countries where we have visa controls—who has applied for a visa either to study or to work here and has overstayed, or a non-visa national from whom a visa was not required, but who has been allowed to come into the UK for only a limited period, perhaps as a visitor, and has overstayed. In one sense, my hon. Friend was right to raise his concern, because under the previous Government, if someone applied in-country for the renewal of a visa and was refused—I believe that was the example he gave—nothing happened. That was quite wrong. With our immigration enforcement organisation, we have started to change that.

It is worth mentioning in passing one change that I believe was generally welcomed in the House, including by the Chairman of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz), who has already been mentioned in this debate despite his not being here. Many people criticised the UK Border Agency, and when the Home Secretary split it up last year, one benefit was that our immigration enforcement operation—the part of the business that enforces the law and deals with illegal immigrants—was given a clear and separate identity. It still works closely with its colleagues in the rest of the Home Office, but we are creating much more of a visible law enforcement culture, which I think is what my hon. Friend the Member for Christchurch is looking for. He said that he had seen some immigration enforcement vans with their livery, which is a deliberate strategy to make people aware that we have legal powers and are taking action. In a moment, I will set out for him some statistics showing that we are stepping up that activity so that people know that we are being effective.

If we are to deal with overstayers, it is no good just having more effective controls at the border, because they were legal when they arrived in the UK. Clause 1 of my hon. Friend’s Bill refers not just to people who enter the UK without authority but to people who are present here, so it covers overstayers. He referred to overstayers being attracted to the UK because of their chances of being removed, but I will set out in a moment why I do not believe that was a correct conclusion. In the Immigration Bill, which is currently before Parliament and waiting for business managers to agree the timing of Report—that is well above my pay grade as a humble Minister of State, as he will know—there are a number of provisions to deal effectively with overstayers. For example, we will make it impossible for someone who is in the country unlawfully to rent property. They will not be able to get a driving licence, and if they have one we will be able to revoke it. They will not have access to a bank account, and we are toughening the law governing whether or not they will be able to work lawfully.

Importantly—several hon. Members have mentioned this—we are putting into primary legislation clear rules about the impact of article 8 of the European convention on human rights on our ability to remove foreign nationals, particularly if they are offenders. Judges have told us that despite having included such measures in secondary legislation, we have not given a clear enough steer to the judiciary. They have asked us to put that into primary legislation, and if my hon. Friend the Member for Christchurch and other hon. Members have taken the trouble to look at the Immigration Bill—I am sure they have—they will know that it contains clear statements about what the public interest requires, particularly regarding those guilty of criminal offences. Except in the most exceptional circumstances, we would expect someone guilty of an offence to be removed from the United Kingdom, and the Immigration Bill will contribute well to that.

My hon. Friend might also have spotted last October that we created the National Crime Agency, so as to be more effective in dealing with serious and organised crime. One part of that agency is the border policing command, part of which deals with the issues he raised about organised crime groups—based both inside and outside the United Kingdom—who are involved in people trafficking. Such trafficking could be either completely against someone’s will or when people effectively con others into coming to the United Kingdom by suggesting that all will be well, and perhaps charging them a fee. When people get to the UK, they then discover that things are not quite as they were led to believe, and sometimes they are almost in some kind of slavery or bonded arrangement, and are indebted to those organised crime groups. Hopefully, my hon. Friend will welcome the measures we have introduced.

My hon. Friend the Member for Shipley (Philip Davies), and my hon. Friend the Member for Christchurch when he introduced the Bill, spoke about exit checks. My hon. Friend the Member for Shipley said that we currently have no idea about who leaves the country, but that is not correct. Around 80% of those going into and out of the United Kingdom do so by air, around 10% by rail, and 10% by sea. For the vast majority of those travelling by air we have what is called advance passenger information, not only for those coming into the United Kingdom, but also for those leaving it. We use those data to protect ourselves from people coming in and to detect people who have perhaps had no right to be here and are leaving. We have that ability, but it needs to be improved.

My hon. Friend the Member for Shipley will know—I think he drew attention to this—that implementing exit checks was one of the commitments in the coalition agreement, and we are in the process of improving the coverage and the amount of data we collect. He will also know that the Immigration Bill contains provisions about outbound journeys, so that where we do not collect advance passenger information, the Home Secretary has the power—if we are not able to do it on a voluntary basis—to direct the carriers to work with the Home Office and perhaps collect some of that information. Such information is already collected for other reasons such as security and booking information, and so that we have more effective information about those coming to and from the United Kingdom. I do not pretend to my hon. Friend that the current position is perfect—it is not, and there is more work to do—but it is not as bleak as he set out. We have also had meetings with those in the rail and maritime sectors to consider what more we can do for those modes of travel.

I detected in the debate one or two remarks from my hon. Friends the Members for Christchurch, for Shipley and for Bury North (Mr Nuttall) about European Union nationals, and the extent to which there are legal provisions to deal with those coming from the European Union. I know that all three hon. Friends take a close interest in such matters, and they will have spotted that in December I laid before Parliament amendments to regulations covering the European economic area. We have taken steps to restrict access to benefits for EEA migrants—that was the subject of the previous Bill, and I am not sure that my hon. Friend the Member for Christchurch has caught up with the extent to which we have already changed the law, but I will not dwell on that.

We have already defined in those regulations some abuses of free movement, such as when people are not exercising their treaty rights—for example, not working, not looking for work, not studying, not self-sufficient, but rough sleeping, begging or taking part in criminality. In those cases, we have given ourselves the legal power—the Immigration Bill is about putting provisions in statute to deal with offences—to remove those individuals from the UK and, importantly and for the first time, to prevent them from returning for at least a year, unless they can demonstrate that they will immediately be exercising their treaty rights. That is a significant new power that EU Schengen countries cannot put into effect because they do not have internal border controls. We can put it into effect because we do have those controls. I hope that gives my hon. Friend some confidence that we can deal with those abusing the free movement rules.

Finally, before turning to the detailed provisions in the Bill, I want to touch on serious criminality. I think my hon. Friends the Members for Christchurch, for Shipley and for Bury North all talked about people committing not just offences to do with their immigration status, but more serious offences. In case they are not aware, I draw to their attention the joint working that the immigration enforcement directorate is doing with police forces, starting with the Metropolitan police, as part of a project called Nexus. It is not surprising, given that one third of London’s population are foreign nationals, that one third of criminals in London are also foreign nationals—they are not more likely to be criminals, but they are not less likely either.

We have opened up a new set of powers, and we are helping the police to use their powers more effectively. It is sometimes difficult to get the required level of evidence to prosecute a person even for serious criminality—for example, if they are involved in gang-related activity, it can be difficult, because of intimidation, to persuade witnesses to come forward—but if that person is a foreign national, it is sometimes possible to use our immigration powers to remove them from the UK and prevent them from returning. Since we started Nexus a year ago, we have removed more than 1,000 high-harm criminals and are now rolling it out to other parts of the UK with significant foreign national populations. We are working with West Midlands and Great Manchester police and—this will be of interest to you, Madam Deputy Speaker—Avon and Somerset constabulary to help them deal more effectively with criminality perpetrated by foreign nationals, which is welcome. I hope my hon. Friend the Member for Christchurch welcomes those provisions, if he was not otherwise familiar with them.

When talking about how attractive the Bill was, my hon. Friend, like my hon. Friends the Members for Shipley and for Bury North, mentioned the noble Lord Ashcroft’s extensive polling on these subjects. I am not sure what terms he used in his polling—whether he referred specifically to the Bill or just to its provisions—but it was probably correct to point out that the provisions were overwhelmingly supported by the general public. I am not at all surprised by that. One of my hon. Friends also said that the general public would be surprised that these things were not already against the law. I do not often agree with the Labour party, but the hon. Member for Croydon North was right that the provisions are already effectively in statute.

The general public are hugely in favour of these provisions—quite rightly; I would expect them to be—but, as I think my hon. Friend the Member for Shipley said, the general public are also right if they think that they already exist in law, because they do exist. It may be helpful, in trying to persuade my hon. Friend the Member for Christchurch not to pursue his Bill, briefly to set out the existing powers.

The Immigration Act 1971 provides for the two criminal offences set out in the Bill. Section 24(1)(a) of the 1971 Act makes an offence of

“knowingly entering the United Kingdom in breach of a deportation order or without leave”,

while section 24(1)(b) makes it an offence to “knowingly overstay or breach” the conditions of leave. The maximum penalty for both those offences on summary conviction is a fine of £5,000 and/or six months’ imprisonment, which is the same as proposed in the Bill—a spooky coincidence. Under section 24A of the Immigration Act 1971, it is an offence to obtain or seek to obtain leave to enter or remain in the United Kingdom by deception, or to secure or seek to secure the avoidance, postponement or revocation of enforcement action by deception—and the maximum penalty for that offence is £5,000 and/or six months’ imprisonment on summary conviction. On indictment, the penalty is two years’ imprisonment or an unlimited fine or both. I hope that Members can see that the offences proposed in the Bill are already on the statute book.

[Mr Chope]

I asked the Minister a question about the incidence of offences. Can he tell us how many people have been prosecuted and convicted in respect of each of the offences to which he has referred? In replying to the parliamentary question I asked him, he said that the information could not be obtained because it would be too expensive.

[Mr Harper]

My hon. Friend anticipates what I was about to say. He refers to a question he asked me a few Home Office Question Times ago. He basically asked me whether there was an offence in relation to this issue and why we did not prosecute people who are in this country unlawfully. I replied that that was against the law, but that our strategy was to secure such people’s removal from the United Kingdom. I think I made the point during that session of Home Office questions that it was not sensible, on the grounds of cost of the process, to prosecute everybody who is here unlawfully. My hon. Friend will know—he has expressed opinions about this before—that legal aid being what it is, the taxpayer would, even with our reforms, be likely to have to pay both prosecution and defence costs. Putting such offenders in prison would also be at taxpayers’ expense, and that would be necessary before we could remove them from the UK.

[Philip Davies]

The Minister talks about the cost of throwing these people into prison, but he was also bandying around the fact that £5,000 fines could be imposed, which I would have thought amounted to getting money into the Exchequer. If he does not want to send these people to prison because of the cost, will he tell us how many £5,000 fines have been levied on these people since he has been the Minister and since these marvellous laws that he has talked about have been in place?

[Mr Harper]

My hon. Friend will know, because he follows criminal justice matters intently, how much it costs to keep someone in prison. He knows that it costs very much more, even for six months, than £5,000. We are talking about costing the taxpayer significant amounts of money. I shall come on in a few moments to the number of people who are removed from the country; I would certainly not want to fund the cost of keeping them all in prison.

The current strategy is that we try to remove people who are in the United Kingdom illegally. Every year of this Government more illegal migrants have departed from the UK than in any year before 2010, and that trend was continuing in 2013. We remove two groups of people from the UK. Our preference is that people who are here unlawfully leave of their own accord. There is a clear reason for that: if someone leaves of their own accord, it does not put a huge financial burden on the taxpayer. If we have to go through the process of arresting and detaining someone, and going through an enforced removal, sometimes including escorts, the cost of removal can be upwards of £15,000 per person. I would rather not burden the taxpayer with that. In 2012-13, 44,000 people were removed from the country. It is worth repeating that figure of 44,000, because the polling seems to show that people think that nobody is removed from the UK, whereas the actual figure is significant. The number of people removed voluntarily because they found that it is not easy to be in the UK illegally increased by 30% between 2009-10 and 2012-13. That is the right approach to take. Part of the reason for the measures in the Immigration Bill is to make it more difficult to be in the UK unlawfully, so that more people will choose not to come here unlawfully in the first place and so that those already here will find leaving the UK a more attractive proposition than staying here unlawfully.

[Philip Davies]

Has the Minister not considered the fact that being much tougher on illegal immigrants might deter others from coming here? He seems to be suggesting that the worst thing that will happen to someone who comes to this country illegally is that the Minister, like Sergeant Wilson in “Dad’s Army”, is going to say, “Would you mind awfully leaving?” How is there any deterrent to stop anybody coming here in the first place illegally if that is the worst that is ever going to happen to them?

[Mr Harper]

Not only do 40,000 people a year leave, but in addition to those who leave voluntarily we enforce the removal of about 15,000 others, and that demonstrates that we are very effective. Part of the reason for the measures in the Immigration Bill is to make coming here illegally less attractive. We are also seeking to make it clear that people who come here unlawfully will find it difficult to be able to work; they will not have access to free treatment on the national health service; and they will not be able to have a bank account or a driving licence. In other words, it will be very difficult for them to be here. So it will be both less attractive to come here unlawfully and more attractive for those already here to leave, and the evidence shows that we are making progress on that.

The Bill contains another set of penalty provisions. The first set of penalties are the imprisonment and the fine, which of course are already in legislation. The Bill also proposes provisions on deportation and makes reference to the “public interest”. That doubtless relates to the points that my hon. Friend the Member for Christchurch made about the convention and the public interest test. Immigration legislation already provides for removal powers without the need to pursue a prosecution, so we have not only administration removal powers but deportation powers in criminal cases. Under schedule 2 to the Immigration Act 1971, immigration officers have the power to remove an illegal entrant. An illegal entrant is for these purposes defined as a person unlawfully entering or seeking to enter the United Kingdom in breach of a deportation order or of the immigration laws, or entering or seeking to enter by means which include deception. Unlike with the criminal sanction, there is no requirement for the migrant knowingly to be an illegal entrant. That is important, because it removes a defence which there would be in a criminal case in relation to the person having to know that they were breaching the law. Section 10 of the Immigration and Asylum Act 1999 gives immigration officers a power to remove a person who remains beyond the time limited by the leave—in other words, an overstayer. Once again, for the purpose of removal there is no requirement for the overstaying to have been knowingly committed.

Part I of the 1971 Act sets out the Secretary of State’s power to deport an individual where it is deemed to be conducive to the public good or where there is a court recommendation for deportation, and the UK Borders Act 2007 further sets out that, subject to the exemptions listed, where a foreign national is sentenced to at least 12 months’ imprisonment the Secretary of State must make a deportation order.

That is the point, welcome though it is, that has fallen foul of the provisions of the European convention on human rights. I agree with what my hon. Friend the Member for Shipley said when he expressed frustration about that, but that is why I hope that he welcomes the provisions in the Immigration Bill, which I set out. If he has not looked at them already, I can tell him that we have set out very clearly in them the public interest test. In other words, judges can weigh up the private interests of the people concerned against the public interest test that Parliament will set out, if it passes that Bill. If someone is a foreign national offender and they have committed a crime, the normal position is that they will be removed from the United Kingdom.

I think that my hon. Friend will also welcome the fact that the test makes it clear that if someone is here unlawfully or in a precarious immigration position—in other words, they are not here for very long—the court should put very little or no weight on any private or family interests built up during that period. Someone cannot come here unlawfully, create a family relationship and then expect that relationship to count, and to be a way of their avoiding being removed from the United Kingdom. That is very welcome, because I think that most Members, and most members of the public, will have the same view that I do: if someone has committed a serious offence, it is not right that they are able to stay in the United Kingdom because they have created some sort of family relationship while they should not have been here. I think that provision will be very welcome, and I hope that it will receive my hon. Friend’s support.

It is also worth saying that the removal powers that I have set out do not carry an in-country right of appeal before removal can take place. In the Immigration Bill, we propose extending the use of non-suspensive appeals so that we can remove more criminals whose article 3 rights are not engaged—in other words, those who would not suffer torture or worse in the country we are removing them to—before they are able to appeal. They will still have an appeal right, but it must be exercised out of country. My hunch is that appeals will not then take place, because most of those appeals are filed by people to try to delay their removal.

My hon. Friend the Member for Christchurch and other hon. Friends who support the measure are usually assiduous—this is a position that I welcome—and particularly on Fridays in persuading the House, whether by dint of argument or through their use of time, that where legislation is not necessary, it should not be passed by the House. I frequently marvel at their creativity. Sadly, as a Minister, it is an activity in which I am no longer able to partake. They give the House many reasons why many Bills which other Members may support should not be put on the statute book.

My plea to my hon. Friend the Member for Christchurch and my other hon. Friends is this. I hope that I have effectively demonstrated, as the hon. Member for Croydon North (Mr Reed) did, that these provisions are already on the statute book and are well supported by members of the public, as one would expect, given that they are sensible measures. Knowing my hon. Friends’ general sense that we should not burden the statute book with unnecessary legislation, I hope that they will acknowledge that the offences are already on the statute book, and will think it not worth troubling Parliament to pass legislation that does not give us any more tools to deal with those who abuse the law.

Finally, I hope that I have demonstrated that this Government, through some of the operational measures we are taking and the provisions in the Immigration Bill, are absolutely determined to address this issue, although we welcome those who come to the country lawfully. The hon. Member for Croydon North was right to put on the record that those who wish to come here lawfully to work, study and contribute to the country, and to pay taxes that make us all wealthier, are very welcome indeed. The Government are absolutely determined that those who have no right to be here or those who abuse our laws should be dealt with.

Having provided that clarity, I hope that my hon. Friend the Member for Christchurch will feel able to tell the House that he does not wish to proceed with the Bill, and I hope that I have not failed to convince him that that is the right course of action.

[Mr Chope]

I am grateful to the Minister for his thorough response. I shall look at it in great detail, along with the Immigration Bill, which I hope we will be able to discuss on Report sooner rather than later, because it is an important matter for the Government. I am surprised that they have delayed it so long. Taking into account what the Minister has said, I seek the leave of the House to withdraw the motion.

Motion and Bill, by leave, withdrawn.