Border Security, Asylum and Immigration Bill (Fourth sitting)

Mike Tapp Excerpts

Committee stage
Tuesday 4th March 2025 Public Bill Committees

[Pete Wishart]

1971—there we go. Section 25 of that Act offers the protection of allowing for a reasonable explanation of why people are caught up in such activity. That is useful when it comes to this Bill, but why do we have to rely on something like that? We are creating a new Bill, which does something specific and unhelpful for some of the poorest and most wretched people who exist on our globe. We have a responsibility for those people under our international obligations and conventions, and this new legislation does nothing to assist them.

The collection of data from people’s phones is facilitated by the Bill, which creates new broad powers to enable the search and seizure of electronic devices. I will come back to the main point I made on Second Reading. We did not get much time to elaborate on this, but I think it is pertinent to the clauses that we are debating, and the Committee must consider it properly.

The gangs have a monopoly and an exclusive right to the irregular migration market. There is no other way for asylum seekers to get to the UK. It just is not possible. There are safe routes available for a small number of countries, but for the vast majority of potential asylum seekers in war-torn regions, areas and countries around the world, the only way to claim asylum in the United Kingdom is to put themselves at the mercy of the gangs, and to go on a small boat to get across the channel.

Business is booming. I do not know if anyone saw the shots today from the camps in France—I think it was on Sky News. What a hell on earth they are! What a disgrace that is for us, who are part of the problem. We cannot get the situation resolved, and we are keeping some of the poorest people in such circumstances. Shame on us, and shame on everyone in the international community who allows such conditions to develop and thrive. Business is booming for the illegal gangs.

I will tell you something else, Mr Stuart. It will only get better for the gangs when the Government cut the international aid budget. What do they think will happen? Do they think that conditions in those areas will get better? Of course they will not. That will lead to so many more people making the journey to the UK, and it will be down to the Government.

[Mike Tapp (Dover and Deal) (Lab)]

Will the hon. Member give way?

[Pete Wishart]

I hope the hon. Gentleman has some sort of reason for that.

[Mike Tapp]

I have an important intervention on that point. The Russians invading Ukraine and going further into Europe would create a much more serious refugee crisis than the one we are facing now. Increasing defence spending is very important.

[Pete Wishart]

I do not know whether the hon. Gentleman has noticed, but for the last three years we have had a refugee crisis from Ukraine—and there is such a distinction between how we have responded to Ukraine and how we have responded to everybody else. We put forward legal routes to allow Ukrainians to come to our country. My local authority, Perth and Kinross council, has the largest number of refugees from Ukraine in the whole of Scotland except the city of Edinburgh. I am immensely proud of the generosity of spirit of the people I represent who are taking part in that scheme.

Is it not so different when we allow schemes like that? That is what we are asking the Minister for. We will have a depopulation crisis towards the middle of the century, and immigrants might be at a premium by 2060 or 2070. Why have we not been inventive and creative? Why are we not looking to do things other than leave that mess—that disgrace—on the shores of France, as we have done to date?

I am sure the Minister will tell us that there is the defence of “reasonable excuse”. I accept that, and I know that it applies to each of these new offences—in other words, if a person has a reasonable excuse for engaging in the relevant conduct, they will not be guilty of the offence. I know that that is exactly what she will tell me, and she is already indicating that that is the case. But the burden lies on the defence to adduce sufficient evidence of a reasonable excuse, and if they have done so, it is for the prosecution to prove the contrary beyond reasonable doubt.

To be fair, the Bill sets out a non-exhaustive list of circumstances in which the defence of reasonable excuse would apply. Under clause 13, for example, a person will have a reasonable excuse if

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

They will also have a reasonable excuse if they were acting on behalf of an organisation that aims to assist asylum seekers and does not charge for its services. All that is purely a matter of judgment, and there does not seem to be a specific threshold for conviction. The maximum sentences for each of the new offences is pretty stiff and those for offences in clauses 13 and 14 in particular are disproportionately high. To put it in context, the offence of possession of articles used in terrorism has a maximum sentence of 15 years’ imprisonment, but someone could get 14 years for falling foul of the provisions in clauses 13 and 14.

The Bill is likely to have an impact on the prison population—I think I heard the hon. Member for Stockton West address some issues about the prison population with the Minister.

--- Later in debate ---

We heard from a variety of witnesses on Thursday that the laws of the destination country make absolutely no difference whatsoever to asylum seekers and do not work in the least as a deterrent, so I do not want to hear about the deterrence from the hon. Members opposite, because there is no evidence to suggest that that works or to support that contention. Come on! Let us take these wretched souls out of the equation, remove them from the legislation and go for the gangs that profit from this vile trade. Let us make sure that we have a Bill that we can be proud of, that we know what the Bill will do and that it will not entrap lots and lots of innocent people.

[Mike Tapp]

Thank you for your passionate speech; I am sure it gripped us all—

[The Chair]

His!

[Mike Tapp]

His speech—my apologies; I will not make that mistake again. It is really important that we look at what is covered in the Bill, and how it enables our Border Security Command, the National Crime Agency, the police, the border forces and the security services to act. We said before the election, in our manifesto, that we were going to take this on in a counter-terror style, so that we can get to those who are looking to launch the boats before they launch them. These clauses go some way to achieving that; I will not quote the NCA director general again, but he was very enthusiastic about that. The further clauses include acts taking place abroad and not just in the United Kingdom.

On the specific amendments, we must be clear. We do not know who is a genuine asylum seeker at the point that they seek to cross; we will not know for some time. The elephant in the room is that, even if they are genuine asylum seekers, they are in France. They are not in danger, as they would be in Sudan, and putting others at risk by preparing these crossings, facilitating them or being involved is not acceptable. Asylum seekers are not above the law, and these clauses ensure that they will be held to account.

[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.

--- Later in debate ---

[Katie Lam]

Clause 16, as the Minister has just set out, creates a new offence of collecting information for use in immigration crime. A person commits such an offence if a person:

“collects or makes a record of information of a kind likely to be useful to a person organising or preparing for a relevant journey or part of such a journey…possesses a document or record containing information of that kind, or…views, or otherwise accesses, by means of the internet a document or record containing information of that kind.”

This is an extremely wide set of information that is being criminalised. We understand the desire to keep these offences broad in order to capture as many offenders as possible, and we support that aim. However, if the definition is too wide, there is a risk that it becomes meaningless and therefore self-defeating. So, it is important to understand how the Minister believes law enforcement will assess whether the information is of a kind likely to be useful to a person organising or preparing for a relevant journey. Could she please explain how this test will be met in practice? It would also be helpful, for similar reasons, to know when the CPS will publish its guidance on what might meet the threshold for an offence to be committed under this clause. Finally, it is again a defence for an organisation that aims to assist asylum seekers if it does not charge for its services. So, we have the same questions and concerns about this defence as we did in relation to the preceding clauses.

[Mike Tapp]

I will quickly talk about this clause, because it is one of my favourite clauses in the Bill. Having worked in a counter-terror role in the past, I know that one of the most effective ways of preventing terror attacks on the streets of the United Kingdom is by identifying hostile reconnaissance, whether it is physical or online. That is why I am so happy to see this clause in the Bill, because it gives our authorities the opportunity to get to these vile criminals before they take to the seas.

[Dame Angela Eagle]

I take my hon. Friend’s point. This clause is very much about being able to capture preparatory work for any effort to evade our immigration laws and bring people over in small boats, illegally putting their lives at risk and potentially costing lives in return for money.

This clause is about a wide range of potential research, but there are also explicit safeguards within it that are sufficient to protect individual migrants and refugees, or families of refugees, trying to help family members to flee danger or serious harm. The defence that a person is conducting these activities exclusively in preparation for their own journey protects individuals from falling foul of this law. The clause is explicitly focused on and aimed at the work done by gang-affiliated facilitators of immigration offences.

The express reasonable excuse of

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

may—depending on the circumstances—protect the families of refugees wanting to help their loved ones flee. There is also an express reasonable excuse for a person

“acting on behalf of an organisation which…aims to assist asylum-seekers, and…does not charge for its services.”

The list of reasonable excuses in the Bill is not exhaustive, so it is very much a question of looking at the information that has been gathered and making a judgment, knowing that the idea of this offence is to focus specifically on organised immigration criminality, not the individuals who may be asylum seekers or may be being trafficked.