Border Security, Asylum and Immigration Bill (Fourth sitting)

Pete Wishart Excerpts

Committee stage
Tuesday 4th March 2025 Public Bill Committees

[Dame Angela Eagle]

The hon. Member asked why the Border Security Commander should be processing data collected from electronic devices. He will know that later in the Bill, there are some new powers that involve collecting, in an intelligence-led way, data from suspected organised immigration criminals. The point is to ensure that data is collected in a lawful manner, and that is why clause 11 allows the Border Security Commander to process data for law enforcement purposes. Some of that is about the counter terrorism-style powers, which we will discuss in relation to later clauses—I do not want to have that debate here—but it is really an enabling power to put beyond doubt the legality of the collection of such material.

Question put and agreed to.

Clause 10 accordingly ordered to stand part of the Bill.

Clauses 11 and 12 ordered to stand part of the Bill.

Clause 13

Supplying articles for use in immigration crime

[Pete Wishart (Perth and Kinross-shire) (SNP)]

I beg to move amendment 3, in clause 13, page 7, line 12, at end insert—

‘(1A) For the purposes of subsection (1), P cannot commit an offence if P is an asylum seeker.’

This amendment would specify that the offence created by clause 13 (“Supplying articles for use in immigration crime”) cannot apply to asylum seekers.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Amendment 4, in clause 14, page 8, line 11, at end insert—

‘(2A) For the purposes of subsection (1), P cannot commit an offence if P is an asylum seeker.’

This amendment would specify that the offence created by clause 14 (“Handling articles for use in immigration crime”) cannot apply to asylum seekers.

Clauses 14 and 15 stand part.

[Pete Wishart]

It is an absolute pleasure to serve under your chairing this afternoon, Mr Stuart. I welcome you to the Committee.

Clauses 13 to 18 are where we start to get into the serious business of the Bill, and where some of its most concerning and controversial aspects are revealed. Nowhere is that more certain than in clauses 13 and 14.

The Government tell us that their whole intention and focus is exclusively on smashing the gangs, disrupting their business and bringing to justice as many of the people associated with and involved in this vile trade as possible. In everything we do in the Committee and in the House, the community must ensure that the Government are supported in that ambition and intention. That is one thing that unites the whole House, and we wish the Government every success in disrupting the gangs, smashing their business operations and bringing them to justice.

As we look at clauses 13 and 14, the first thing we have to do is assess and judge whether they assist in that process. I think we have to come to the conclusion that they do not, and they could make the situation a lot worse. They will certainly make the conditions of those who seek to come to our shores—some of the most wretched people in the world—much harder and more intolerable.

[Jo White (Bassetlaw) (Lab)]

Does the hon. Member hold the view that an asylum seeker cannot be above the law when it comes to participating in smuggling gangs?

[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 ---

[The Chair]

Before the hon. Member responds, that was far too long, Mr Murray. Please try to keep interventions short. Of course everyone is welcome to speak in the debate.

[Pete Wishart]

Thank you, Mr Stuart. That is a reasonable point; I think the hon. Gentleman is on to something. Of course some gang members will pretend to be asylum seekers, but it is up to the fine people who came in front of our Committee to determine and ascertain the truth. We should not create further ways to criminalise people that focus almost exclusively on asylum seekers. We must find ways to differentiate; we cannot have blanket, broadly defined clauses that include everybody.

The hon. Member for Edinburgh East and Musselburgh has a fine history and record of working with asylum seekers and refugees. He has seen the briefings, as I and all Committee Members have. He will therefore know that practically every charity and organisation that works with, and tries to improve the lives of, asylum seekers and refugees tells us that ordinary asylum seekers—those fleeing conflict, oppression and extreme poverty—will be the ones caught up in these new measures.

My amendments are very straightforward. Let us exclude asylum seekers from the provisions of clauses 13 and 14. I want to do that for a number of reasons, but the one the Minister might be most attracted to is that doing so will actually help the Border Security Commander. It will allow him exclusively to focus, laser-like, on the Bill’s main target: the gangs that ply this evil trade. Let us forget about the riff-raff and the chaff. Let us focus our attention on those who arrange and organise this vile trade across the channel, and go for them.

[Tom Hayes (Bournemouth East) (Lab)]

Does the hon. Gentleman agree with what Rob Jones, the director general of operations at the National Crime Agency, said in his oral testimony last Thursday? He said:

“We are not looking to pursue asylum seekers who are not involved in serious and organised crime. That is not what we do. This is about tackling serious and organised crime and being as effective as we can be in doing that.”––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 35, Q35.]

If we read the tea leaves, it is almost as if the hon. Gentleman is saying that there is an intent to pursue asylum seekers. Moreover, the NCA’s remit is already to be laser-focused and go after those gangs, as he recommends.

[Pete Wishart]

Rather lengthy interventions are a feature of this Committee, but I am happy to go with that if everyone else is. The hon. Gentleman is right to refer to the National Crime Agency. I listened carefully to what Mr Jones had to say to the Committee, and I have no doubt about his intention. I do not think he really wants to ensnare asylum seekers; I do not think that is his focus. But he has these two badly drafted and broadly defined clauses as the net that will scoop everything up. As the hon. Member for Edinburgh East and Musselburgh said, everybody will be in that net, and it will be a matter of trying to sieve them.

Why not start with the presumption that we will go for the gangs exclusively and leave aside those who come our shores to apply legitimately for asylum in the United Kingdom? Let us not waste time criminalising such people. The main problem, as I have said, is that the clauses are so broad in scope. They are not just a fishing net; they are a trawling net, trying to lift out everybody who comes across the channel.

The clauses cover not only direct acts of people smuggling, but incidental activities that may not involve any criminal intent. In combination with other clauses, they would make it a crime to supply or receive almost any item that one suspects could be used to facilitate illegal travel to the UK. The proposed legislation criminalises collecting or even viewing information that could be useful in making irregular journeys, if there is reasonable suspicion that it could assist others in migration. Although the Government couch a lot of this in humanitarian language, the provisions will not prevent deaths and harm at sea. Instead, they will criminalise people on the move who have no alternative route to the UK.

Let us look at the provisions in a little bit more detail. Supplying, offering to supply and handling articles for use in immigration crime will now get someone a maximum sentence of 14 years’ imprisonment. Although there are some limited humanitarian exemptions—for example, offering food and drink—the provisions considerably broaden the potential prosecution of migrant assistance and support. Importantly, with all the proposed new offences, there appears to be no explicit defence for those who are on the move.

Then there are the provisions about collecting information for use in immigration crime. Such information includes arranging departure points, dates and times; in other words, information that it would be necessary to gather if someone attempted to make such a journey themselves. The Bill makes it clear that evidence could include someone’s internet history and downloads. The Government contest this, but even looking up a weather map could put someone on the foul side of these clauses. I expect the Government will tell me, “No, of course that won’t happen,” but nothing in the clauses that we are debating states that that activity is exempt.

[Becky Gittins (Clwyd East) (Lab)]

It is a privilege to serve under your chairship, Mr Stuart. Did the hon. Member feel that the Crown Prosecution Service gave that assurance at our evidence session last week? The witness categorically stated that such circumstances would not pass the criminal test or the public interest test. Does the hon. Member think it is important that we do not make such inferences when we discuss the Bill, so that we can see clearly how our criminal justice system applies these things?

[Pete Wishart]

That is a helpful and useful intervention, and the hon. Lady is right that the CPS did say that. I listened again very carefully to what was said, because concerns about these provisions have been raised repeatedly. I am sure that the CPS is serious about that, but I challenge the hon. Lady to look at the provisions and tell me how such a scenario could not be caught. The Bill is badly drafted because it provides the conditions to allow such a perception to develop. I know the Government do not want to arrest people who are looking at weather maps. I am certain that is not their intention at all, but when we examine the Bill we can see that it will allow that very thing to happen.

The Minister refers to the provision in section 25 of the Illegal Immigration Act 1972 or 1973—

[Dame Angela Eagle]

1971.

[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.

[Tom Hayes]

It is a pleasure to serve under your chairpersonship, Mr Stuart, as I should have said earlier. Is the hon. Gentleman saying that the proposed sentence for the facilitation of small boat smuggling and criminal activity is too high? Did I hear that correctly? Please do correct me if I am wrong.

[Pete Wishart]

The hon. Gentleman is wrong, and he did not hear me correctly. I am talking about the new offences in clauses 13 and 14, falling foul of which could result in a maximum of 14 years’ imprisonment. He might contend that that might get some gang member, but I am suggesting otherwise. I suspect that practically nobody from gangs involved in this vile trade will be caught up in these offences, but ordinary asylum seekers will be.

Lastly on the prison population, there is a notable lack of robust evidence that lengthier custodial sentences achieve a deterrent effect or a reduction in reoffending. That is explicitly not acknowledged in the impact assessment for the Bill, which states:

“There is limited understanding of the behavioural impact of this intervention, so the deterrence effect on dangerous behaviour may not be realised as intended.”

I do not know whether the Minister believes that the new laws she is creating will make the slightest bit of difference to those who are in areas of conflict or fleeing oppression. I am not entirely sure that asylum seekers sitting down on the beach, or in the deserts of Sudan, in Afghanistan or in Iran, are the least bit cognisant of the developing, hardening and draconian laws of this country, put in place in Committees like this one. I suspect that they do not know about them—and, if they did know about them, they would not care less. Their sole and exclusive priority is saving their family’s and their children’s lives, and getting the hell out of that place.

That is the irritation; those asylum seekers could not care less about the Border Security, Asylum and Immigration Bill that is being debated here today. They want out, and they will do anything possible to rescue their family. Imagine that, after all that journey, after sitting in these boats, after being in the hands of the people smugglers and those gang members, they arrive in the good old United Kingdom, only to be apprehended on the basis of clauses 13 and 14 of the Bill.

--- Later in debate ---

[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—

--- Later in debate ---

[Pete Wishart]

I wish I could say that I was reassured by the Minister’s response. There were things she said that encouraged me and that I think she was genuine and sincere about. She, and everybody who has contributed today and who we have heard from over the past couple of weeks, is right that we do not want to arrest asylum seekers. That is the last thing we want to do, and I accept that that is the case in practically everything that anybody has said. However, more asylum seekers will be arrested because of these clauses. More will be facing justice, whatever way it applies, right across the United Kingdom because of these new offences.

What we have forgotten is that it is already illegal to enter the UK irregularly. In 2020, 6,477 people were arrested because they arrived in the UK irregularly. With clauses 13 and 14 we are not addressing the illegality of issues such as people coming to the United Kingdom; we are finding new ways of ensuring that those people will be subject to court proceedings—to being on the wrong side of UK law—and that is the thing that concerns us most.

Many people have referred to agencies that gave us support today. I listened to the NCA’s evidence, and some of it was very interesting and compelling. I accept that it wants to target the gang members and those involved in this violent trade, and that is what we should be helping it to do. Obviously, asylum seekers will get caught up in all that, but let us enable the NCA to focus exclusively on trying to apprehend the gang members and secure justice rather than trying to find new ways to criminalise people coming to the UK,.

[Dame Angela Eagle]

Will the hon. Gentleman not take my word that the offences will be intelligence-led? They are not targeting all asylum seekers, but they certainly would target someone coming over on a boat who may claim asylum, who has been involved in an organised immigration gang, and who has been organising the supplies for it.

[Pete Wishart]

I obviously accept the Minister’s word when it comes to all this, but we need to look at what is in the Bill. There are measures that we do not like and that we do not think will help to achieve the major objective, which is to disrupt the gangs’ business model and ensure that they are brought to justice. That just does not happen with these new clauses. The measure to which amendment 3 refers does not offend me in the same way that the subject of amendment 4 does. I will withdraw the amendment, but I reserve the right to push the next amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Amendment 4 negatived.

Clauses 14 and 15 ordered to stand part of the Bill.

Clause 16

Collecting information for use in immigration crime

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