UK Borders Bill

Public Bill Committee, 15 March 2007.

Clause 19

James Clappison (Conservative, Hertsmere)

I beg to move amendment No. 53, in clause 19, page 11, leave out lines 4 to 8.

We now return to the question of appeals under the points-based system, which was where we left off on Tuesday evening. The clause is a new aspect of those appeals. As members of the Committee will recall, it deals with appeals under the points-based system and, in particular, what sorts of evidence may be adduced on appeal.

The amendment relates to proposed new section 85A(4)(d), under which evidence that would challenge the Secretary of State’s discretion to refuse an application under a points-based system, and in particular to do so on grounds not related to the acquisition of points, would be allowed to be adduced on appeal. There are two purposes to the amendment, which would delete that proposed paragraph. The first is to ask how far the points-based system will extend, and therefore how far the appeals provisions will extend. In asking that I bear in mind the problems that have been encountered in the appeals system: a huge volume of appeals in certain categories, a backlog of appeals, a disjunction between the working of the asylum and immigration tribunal and posts overseas, long delays and many other problems. It is a relevant question to pose.

The Government have published their proposals for the points-based system, but I understand that they are not entirely cast in stone. I would like to know how far the system will extend. It seems evident from the Government’s papers that it will apply to work permits, including those with an entitlement to settlement, which are an important feature of the work permits system and are overlooked. When one talks about work permits it is not always understood that permits of certain categories carry the entitlement to reside in the United Kingdom or to become a UK citizen after four or five years of residence. That is an important fact but it is not always taken into account. The question is not just of work permits but of entitlement to settlement and therefore economic migration.

It is clear that the appeals system will cover work permits, but will it extend, for example, to students applying to study in the United Kingdom? How will they be dealt with? Will they be part of the points system and, if so, will they therefore be able to appeal under these provisions? Will evidence be able to be adduced on appeal about a student studying in the United Kingdom? I would like to know how far the provisions will extend and what applications they will cover.

The second purpose of the amendment is to register support for the judgment of immigration officers as an exercise of discretion when it is appealed against under these provisions. That seems to be what proposed paragraph (d) is getting at—giving the right to appeal against the discretion of the Secretary of State as exercised by immigration officers. I pray in aid the important evidence that we heard from Migrationwatch UK about the importance of the judgment of immigration officers. I remind the Committee that I asked a question specifically related to the amendment, and Sir Andrew Green told us about the judgment of immigration officers. He said:

“That judgment is absolutely essential. I think appeals against that judgment should not be allowed. It is turning into a legal nightmare.”——[Official Report, UK Borders Public Bill Committee, 13 March 2007; c. 277, Q331.]

I can also pray in aid what the Minister himself said in an earlier debate about the importance of the judgment of immigration officers. There was an element of consensus, at least between him and myself, on what a good job immigration officers do and how important a part of that job is their judgment. In support of the amendment, I quote what the Minister said to the Committee:

“putting feet on the ground is not enough if those officers do not have the power or the tools to do their job effectively in the 21st century.”——[Official Report, UK Borders Public Bill Committee, 6 March 2007; c. 163.]

I believe that a large part of the power of immigration officers is the power to exercise their discretion. Removing much of that discretion, in effect, changes the role of immigration officers and takes away much of their power. I think that the Minister and I were at one on that, but I would like to hear a response.

In other documents about the proposals for a points-based system, Ministers have spoken of the clarity and objectivity of such a system, but there does not seem to be a lot about the judgment of immigration officers. I would suggest that that judgment is so valuable, because it is formed from experience of conditions on the ground, at post, based on local knowledge, and in the case of the applications that we are dealing with—for work permits and other types of leave to remain or enter—presumably the immigration officer has had the opportunity to see the applicant. An immigration officer in such a post knows the local conditions and the problems that there can be generally, and specifically to certain countries. The immigration officer then exercises his judgment on the basis of that local knowledge and possibly after having had the opportunity to see the applicant.

Appeals against the judgment of the officer will go to the asylum and immigration tribunal, which sits at Taylor house on Rosebery avenue in Farringdon, well away from the conditions that immigration officers face daily. The tribunal will not have the local knowledge or the experience of the officer. Sir Andrew Green speculated that it may well be, apparently, that members of the tribunal will not even have visited the country in question; and presumably they will not have the opportunity to see or question the applicant. Wondering aloud, how can one sensibly say that an asylum and immigration tribunal sitting in London can exercise discretion better than an immigration officer on the ground? How can the tribunal sensibly challenge such discretion? However, that is what the clause appears to do.

I would like an answer to a specific question. Can the asylum and immigration tribunal just look at the same circumstances with which the immigration officer was confronted, or can the appellant, in support of an appeal, present new evidence—not seen by the immigration officer—to the tribunal? As I understand section 85 of the Nationality, Immigration and Asylum Act 2002, which deals with appeals under the present system, that is not allowed. The asylum and immigration tribunal can only take into account circumstances appertaining at the time of the decision to refuse. Under the proposed subsection, will the asylum and immigration tribunal be able to look at new circumstances? That is an important question, to which I should like an answer. My view is that one should trust immigration officers on the ground, rather than allow their judgment to be challenged. I look forward to the Under-Secretary’s response.

Many other issues surrounding the points-based system more generally, come into play in determining how many such appeals are likely. There are lots of issues about how high the bar will be set in the points-based system for what the Government describe as highly skilled migrants. Just how highly skilled will they be? How much demand will there be for the work of skilled workers in tier 2? How wide will be the range of occupations for skilled workers covered by the Government’s points-based system? All are relevant to the question of how many such appeals there are likely to be. Those might be matters for another day, but I should like a response from the Under-Secretary to the points that I have raised now.

Joan Ryan (Labour, Enfield North)

I welcome the opportunity to discuss the matter, so I am pleased that the hon. Member for Hertsmere has tabled an amendment that touches on issues that will benefit from discussion and clarification.

Let me make a few general comments. Under the points-based system, applicants must prove their entitlement to points by producing, as part of their applications, pieces of evidence specified in the immigration rules and accompanying guidance. That obligation is new to our immigration system, and it is an essential part of the new, objective points-based system. We believe that that requirement will benefit applicants because, unlike now, they will know exactly what they need to provide in order for their applications to succeed. It is, therefore, fair to expect them to supply that evidence up front, with their applications, rather than allowing them to submit it later or even with their appeal papers, as they can now. For that reason, I believe that appellants making appeals under the points-based system should be entitled to ask the asylum and immigration tribunal to consider only evidence that was submitted with their original application. The tribunal will be allowed to consider new post-application evidence only in narrowly defined circumstances, for the sake of fairness and in order to comply with our international obligations.

James Clappison (Conservative, Hertsmere)

I am tempted to ask what those circumstances will be. What are the international obligations that the Minister mentions? As Sir Andrew Green reminded us, we are talking about people applying from abroad to come to this country; not UK citizens or people who happen to be in this country.

Joan Ryan (Labour, Enfield North)

It might be helpful if I remind the Committee that we are talking only about in-country appeals under the points-based system. Under that system, there will be no appeal in relation to out-of-country applications, because if one of those applications is refused a new application will be made. It is important to remember that the measures apply to in-country appeals relating to points-based applications. The obligations that I refer to relate to justice. Later I shall cite some specific examples that will, I hope, illuminate the circumstances in which new evidence on appeal will be allowed.

In order to avoid injustice, the new provisions for appeals must come with appropriate safeguards. Everybody who is refused leave to enter or remain and who has a right of appeal under existing legislation will continue to have that right. This clause simply restricts the evidence that can be presented at an appeal against the refusal of an application under the points-based system.

New evidence will always be allowed where it is presented in support of an appeal brought on the grounds that the decision was racially discriminatory or in breach of the appellant’s right under the European Community treaties, the refugee convention or human rights legislation. New evidence will also be allowed in cases in which the Home Office alleges that a document that has been provided with an application is forged or not genuine. The applicant might not be aware that that is an issue until the allegation is made, so it gives him or her a chance to clear his or her name.

Damian Green (Conservative, Ashford)

The Under-Secretary is specifying categories of appeal in which new evidence will be allowed. Can she clarify who will decide whether an appeal comes into one of those categories? That will clearly be an important measure of how fair and independent the system will look to the appellant.

Joan Ryan (Labour, Enfield North)

Indeed. That is an important point, and I shall come to it in a moment.

It is clear that if we suspect that a document is forged, the applicant cannot know that allegation in advance, so he or she should have the right to question it.

James Clappison (Conservative, Hertsmere)

Who will be looking at the document to see whether it is forged, for the purposes of these appeals?

Joan Ryan (Labour, Enfield North)

I will come to that question in a moment when I reply to the hon. Member for Ashford.

To finish the point that I was making, for the same reason that applies to the forged documents the clause will also allow an appellant to submit new evidence in order to contest a reason for refusal that does not relate to his or her entitlement to points under the points-based system. That is designed to avoid injustice, for example in a case in which an appellant has enough points to qualify for leave but is refused because, according to the immigration and nationality directorate’s records, he has a criminal conviction that makes his presence here undesirable.

The appellant might want to provide evidence that the conviction relates to someone else and not to him; he may have to submit that evidence after he has been refused, because he may not know about the alleged conviction until the refusal. Those are the types of circumstances in which we would expect to be able to allow new evidence. The tribunal will decide whether evidence comes within the exception.

The hon. Member for Hertsmere asked how far the points-based system will extend. It will extend through all five tiers: skilled workers and business people; skilled workers with work permits; unskilled workers; students; and youth mobility and temporary workers.

The hon. Gentleman also asked about the presence of appellants at appeals, but as the proposal applies only to in-country appeals it is always possible, if not desirable, for the appellant to be present at the appeal and nothing should stand in the way of that.

James Clappison (Conservative, Hertsmere)

I should like some clarification. The hon. Lady keeps talking about in-country appeals to the asylum and immigration tribunal, but these are applications for work permits or student visas that will have been made by someone overseas who has been refused permission to come to this country. The hon. Lady shakes her head; perhaps she can explain the circumstances to which she refers.

Joan Ryan (Labour, Enfield North)

These are applications under the points-based system by people who are already here and who have leave to remain that is approaching its expiry date. They must make their application in time; these are not applications from people out of country overseas who wish to apply for entry clearance under the points-based system to work here.

James Clappison (Conservative, Hertsmere)

On what basis are these people in the country? Where in the Bill does it establish that these are only in-country rights of appeal rather than appeals for anyone who applies on a points-based system, which one imagines will be the vast majority of people who apply? The Government envisage in their own paper that it is for people who want to apply for work permits or student visas from overseas.

Joan Ryan (Labour, Enfield North)

In our document on the points-based system it is clear that there is no right of appeal for people overseas applying for entry clearance under that system. Their right is simply to reapply; the right of appeal only applies in-country for those whose leave is about to expire. That could involve anyone who has leave to be here, to work or study, who comes within the five tiers of the points-based system.

As is the case now, people must apply for further leave to remain if their leave is moving towards expiry. What we are referring to are in-country applications for an extension to existing leave. Out-of-country appeals for clearance under the points-based system are removed by section 4 of the Immigration, Asylum and Nationality Act 2006, rather than by this Bill.

Damian Green (Conservative, Ashford)

I am grateful to the Under-Secretary, who has been very generous in giving way. However, she will recognise that there are important matters here that need clarification. Can she give the Committee an estimate of how much extra pressure this measure will put on the already creaking asylum and immigration tribunals? If it is the case, as the Minister has just explained, that it is going to be a mode of appeal for in-country appeals—for people who are already here—and they will all go through the tribunals, how much extra work will be put on that system?

Joan Ryan (Labour, Enfield North)

If the hon. Gentleman thinks through how the system will work, he will find that this measure will have the opposite effect. It will lift the pressure and make a more streamlined and speedier system, which will be to the benefit of all: those who apply; those who deal with the appeals; and in fact employers, colleges and others, who will benefit from a speedy system and from knowing who will be given extension to their leave and who will not.

Just to backtrack a little bit, there was one other point that the hon. Member for Hertsmere put to me, about who will decide whether a document is forged. It is for the asylum and immigration tribunal to decide whether an appeal is allowed, so it would have to decide whether a document is valid or not.

This measure is not a new right of appeal, so there is no reason why it would add extra pressure to the system and every reason why it would reduce pressure. It restricts evidence that already exists from being submitted at appeals. It will be a beneficial measure.

The amendment has illuminated some of the issues and I hope that it has clarified how this measure would operate and to whom it would apply. However, I cannot accept the amendment for the reasons that I have given—reasons of justice regarding the appellant being refused on the basis that I have explained. I can assure the hon. Gentleman that this matter is narrowly defined and that the point of the measures is to ensure that no new evidence will be submitted to appeals, unless it falls within those narrowly defined instances.

With that, I ask the hon. Gentleman to withdraw his amendment.

James Clappison (Conservative, Hertsmere)

I want to reflect on what the Under-Secretary has said, but there is one matter that I am unhappy about, which is what she was telling us about fraud and decisions on fraudulent documents. That is because, sad to say, in some posts in particular—although this could also be a general problem—there is a huge problem with fraudulent applications.

The same fraudulent documents may be used in applications made in this country that then go to the asylum and immigration tribunal. Those fraudulent documents—educational qualifications, professional qualifications or documents showing work experience—can be extremely sophisticated and it requires a great deal of training of immigration officers in their posts to be able to spot the difference between one type of forgery and another. To ask the asylum and immigration tribunal to be able to judge documents from so many different countries and to develop the expertise necessary to sort out the fraudulent documents is asking a great deal of that tribunal sitting in Finsbury Park. I am unhappy about that, because I prefer to rely on decisions that are taken by people who have more experience of identifying these fraudulent documents.

I hope that I have laid down a marker in the remarks that I have made, that I place great reliance on the judgment of immigration officers. However, because I shall want further clarification on this matter, I shall be asking for leave to withdraw the amendment.

My only other point is that I have been talking about people whose applications should be turned down. I do not want to lose sight of the fact that the applications of an enormous number of people who seek leave to come to this country should be granted. I am thinking particularly of students, because it is important that some students come to this country to study—it is of benefit to them, to their country and to this country—but there must be strict control over them and a careful sifting of applications. On that basis, I beg to ask leave to withdraw the amendment.

Damian Green (Conservative, Ashford)

I beg to move amendment No. 90, in clause 19, page 11, line 11, at end add—

‘(3) The Secretary of State shall lay before Parliament, not more than 12 months after the commencement of the provisions under this section, a report on their operation.’.

The amendment attempts to give Parliament a handle on how the clause will operate in the real world. I want to put it in the context of a letter that I received from a legal practitioner in the field who, for her sake, had better remain anonymous. She makes a point about the clause and its attempt to make the points-based system faster and more automatic, and to give some framework for appeals under it. She states:

“At the moment the quality of decisions on the only points based category”—

the highly skilled migrant programme—

“is terrible, with many decisions being overturned and many decisions being seemingly arbitrary, with the issued guidance being totally inadequate. If this scheme is to be rolled out across the whole of the managed migration programme, then initial decisions MUST be better, and guidance MUST be clearer. To refuse further documentation to be sent effectively means that applicants will have to hire legal representatives to assist, and that costs will be driven up further.”

That evidence from the workplace is based on the experience of a current legal practitioner in the field who suspects that the measure will drive up costs and will require more people to take expensive professional legal advice.

I hope that Ministers will pause briefly and consider amendment No. 90. If that practitioner is right, and trouble is being stored up by the provisions, it is all the more important that Parliament should have an opportunity fairly quickly after their commencement to receive a report on their operation. In previous debates, Conservative Members have made the point that we wish generally to improve the accountability of the Executive to Parliament—indeed, the Minister expressed some sympathy with that desire. It is particularly important in respect of this part of the Bill, which will obviously have a direct impact on people’s ability to stay in this country. We have heard that it will specifically affect those who are already here and who are applying to remain under the new points-based system. This area of immigration policy is as sensitive as any, and therefore it is all the more important that we should know what happens. Parliament needs to be assured that Ministers have the balance right between our desire for a robust system and our desire for a fair one.

The practical effects of amendment No. 90 would be relatively modest. It is surely not too much to ask the Secretary of State to come before Parliament and explain to us the actual workings of the legislation. The amendment asks for a report not more than 12 months after commencement, and I would hope that it would become a regular feature. I suspect that, in the long term, it might give pause to those Departments that seek to pour out new legislation every Session if a significant part of the ministerial work load were to involve reporting back on previous legislation and on what had gone wrong with it. It would be an interesting exercise for Ministers to go through the various immigration Acts and explain why some parts of them are in operation and others still are not. That would apply even more to the Home Office’s plethora of criminal justice legislation, some of which lies unused on the statute book for years after introduction—but I am conscious that I am going wide of the amendment. However, I commend to Ministers that proposal as a way in which to improve the long-term performance of the Department and the ability of Parliament to do its job properly.

Paul Rowen (Liberal Democrat, Rochdale)

I rise to support the hon. Gentleman’s proposal. We heard earlier from the Minister, who said that he was proposing to set up the IND differently and to subject it to regulation by Parliament. I welcome that. Certainly, anything that makes the immigration process more transparent and subject to parliamentary reporting must be welcomed. We are talking about a points-based system that, as has been said, is used only in one area at the moment, and so is new and relatively untried. During our discussions on earlier amendments, we debated changes that would have allowed new evidence to be used in certain circumstances, but the Minister did not accept them. However, we need to know fairly soon after the clause comes into operation how it is proceeding. An annual report, given the new regulatory framework that the Minister will set up for the IND, would be good practice and would give hon. Members confidence that the IND was on the road to recovery.

James Clappison (Conservative, Hertsmere)

I, too, welcome this important amendment. It is very difficult to talk about clause 19 and the appeals system without talking about the points-based system as a whole. I think that the Minister conceded that point in his opening remarks. We need to look at how much pressure will be on the appeals system and, therefore, how many applications there will be under the points-based system.

Will the Under-Secretary say a few words about the nature of the points-based system? In particular, how high is the bar for qualification for those described as highly-skilled migrants? Are the Government thinking in terms of the table set out in their points-based system document, which explains how applicants can acquire the necessary points to enter the United Kingdom? Under such a system, it would be quite easy to construct scenarios in which people in their mid-20s—they could be as old as 27—with degree-level qualifications and earnings in their own country comparable to those of graduates in this country could qualify. It appears that a very large number of people could qualify as highly-skilled migrants—that is how the Government choose to describe them. A very significant number of people could qualify, particularly, one suspects, from developing countries and countries with income levels much lower than ours.

There is also the question of what the Government describe as skilled workers, who can be recruited from overseas to come and work here if there is a shortage in those occupations. We need to hear from the Government about how long the list is of occupations that would be covered. We heard, I think, in the evidence from the trade unionists how active agencies can be in recruiting from overseas on behalf of employers in this country. We had a recent example of how extensive that recruitment can be with the Government’s recruitment to the national health service. Since 2000, the Government have recruited 50,000 doctors and nurses—3,000 doctors and 47,000 nurses—from Africa. That is a substantial number. They have all come here under the Government’s programme. One suspects that many have come as a result of recruitment by agencies, which raises a number of issues, not least the effect on the African countries. That is possibly an issue for another day; I have asked the Secretary of State for International Development about it and I was not entirely convinced by his answer, which was that more infrastructure was needed in Africa; more hospitals needed to be built and more training programmes needed to be run. That is a lot to ask of African countries where incomes and gross domestic product are a fraction of those in this country.

There is also the issue of economic migration to this country. The Government have presided over—I use that neutral phrase—a period of significant economic migration through the work permit programme. As the Minister told me in a recent written answer, the number of people in receipt of work permits that carry with them the entitlement to settlement has increased from 58,000 in 2000 to 107,000 in the first 11 months of last year, which is a near doubling in seven years. That is a substantial rate of increase.

From some of the rhetoric that one hears from the Government, one suspects that there are elements within the Government that are in favour of economic migration on what they see as economic grounds, although Migrationwatch dealt with that argument with the evidence that it gave to the Committee on Tuesday, which I certainly did not hear successfully challenged.

Damian Green (Conservative, Ashford)

Under the specific terms of the amendment, Parliament would have a report from the Home Secretary. It would give this Home Secretary, for example, the chance to agree with or repudiate the proposal of his predecessor but one that there was no obvious upper limit to immigration to this country. The Government behave as though they do not believe that any more, but they have never formally said so; the amendment would give Parliament a useful chance to ask the Home Secretary whether he has reversed the Government’s previous immigration policy.

James Clappison (Conservative, Hertsmere)

While the Government are answering that, they might also like to answer the question whether they believe that under the points-based system, the number of applications will be the same as it is now, or higher or lower. Perhaps the Minister would like to tell us. Do the Government see the number running at this rate of over 100,000 a year? As I emphasised, I am talking about work permits that carry the right to settlement, which I suspect will be exercised in a substantial number of cases.

David Davies (Conservative, Monmouth)

My hon. Friend is making some excellent and interesting points. Does he feel also that the Government should explain what checks are made on the qualifications that are produced by people who want to come here, particularly in the case of medical practitioners? What safeguards are there to ensure that their documents are valid?

James Clappison (Conservative, Hertsmere)

My hon. Friend makes an important point. I will come to it in a moment. I should like to hear from the Government about the migration that they foresee taking place under the provisions. Let us remember that such migration carries with it the right to settlement. The system is called “work permits”, but it is work permits with the right to settle. We are not talking about the number of people coming from eastern Europe; that is a different issue, which is dealt with under European Union treaties.

Eric Illsley (Labour, Barnsley Central)

Order. The hon. Gentleman is straying a little bit wide of the clause and the amendment. I remind him that the clause relates to points-based applications and no new evidence, so he is going rather wide of the mark. I should like him to come back to the Bill.

James Clappison (Conservative, Hertsmere)

You are absolutely right, Mr. Illsley. We need to know how many applications, and therefore appeals, there will be, and how much pressure there will be on the system. The applications will result in pressure on the system. The Minister needs to deal with this question: how many applications does he foresee under this system?

My hon. Friend the Member for Monmouth has just mentioned the important point of checking the entitlements of the people in question and guarding against forgery. That is very important to the clause, because the Government seem to envisage the system working through a mechanical checking of whether the person ticks the right boxes to accumulate enough points, on the basis of the documents and any other evidence that they produce. The Under-Secretary’s earlier use of the word “objective” echoes the Government’s paper on the matter—the term is used repeatedly, because the Government see what is happening as an improvement on the system—and it is, I think, meant to signal that there will not be as much scope for individual judgment in individual cases, when the person making the decision is not satisfied, after looking at the case in the round and bringing their experience to bear on it, that the application is genuine.

The Government seem to wish among other things to facilitate such migration and put it on what they regard as a legal basis, although I do not know whether such a basis is a legal requirement. However, I know that it is important that immigration control should be tight and that people should not slip through the system because they happen to tick the right boxes, without their applications being examined for possible irregularities or wrong motivation. I am very worried about problems at that end. There is no use in the Government’s producing proposals for dealing with overstayers and the like if we do not get the first line of defence right. In that line of defence, the interests of immigration control should come before anything else. That necessitates an element of judgment. Of course, if people have a legal entitlement and it is accepted that their application is genuine, they must receive whatever benefits they are entitled to under the Government’s proposals on permission to come to this country, but there must be an element of individual judgment.

The Government are storing up problems, and things will get even more unsatisfactory as far as appeals are concerned. The Government have already had to withdraw some rights of appeal, which I believe they granted in the first place because the system was being overwhelmed. There is a fundamental problem or disjunction in a system that has what Migrationwatch suggested was, in comparison with those of other countries, a Rolls-Royce appeals system. I should be interested to learn what happens in other countries in this respect. I do not know, but I should not be surprised to learn that our appeals system was far more extensive—a Rolls-Royce in comparison with other countries’ systems.

Damian Green (Conservative, Ashford)

From my experience—I have visited Taylor house; I spent an interesting day there—if we have a Rolls-Royce system it is a Rolls-Royce without an engine, because however it gleams on the surface, it barely moves. For many people involved, particularly the judges, the system is dysfunctional. There are about 450,000 cases delayed in it, and anything that puts added strain on the system will make a bad situation worse.

James Clappison (Conservative, Hertsmere)

My hon. Friend has anticipated my next point, as I was about to say that the Government had set out to create a Rolls-Royce system, but that it turned into an old banger on the way. I think that what my hon. Friend has seen of the system has amounted to a similar experience to mine. I also had the opportunity of visiting a post, seeing the appeals papers piling up, the ping-pong of requests for information between posts, and the delays and all the problems that arise from them. It is all set out in the Home Affairs Committee’s evidence. It is not surprising that Ministers have concluded that they must restrict some rights of appeal.

Stewart Jackson (Conservative, Peterborough)

Does my hon. Friend believe, as I do, that Ministers should consider carefully, when they compile the points-based system, work force needs in key areas, particularly the health service? The Select Committee on Health will report shortly on work force planning. That will make interesting reading, but it is already publicly known that we may have about 3,200 hospital consultants for whom there will be no jobs. Should that be considered in the points-based system?

Eric Illsley (Labour, Barnsley Central)

Order. I ask the hon. Gentleman not to respond in too much detail to that, and to come back to the matter before the Committee.

James Clappison (Conservative, Hertsmere)

I put it in a way that is highly relevant to this clause. I would like an answer to the point that I put to the Under-Secretary. How wide is the list of occupations under tier 2 for skilled workers? How big a list is that going to be?

I was told by an immigration officer that immigration was all about economics. I think there was a lot in that observation, because there is literally unlimited demand for people to come and work in this country and to enjoy the higher incomes that are available in this country as compared with the lower incomes available in their countries. They are hard-working people and they have laudable motivation but it has to be taken into account whether or not levels of economic migration are sustainable. The level of economic migration into this country today is historically at a higher level than ever, putting it mildly, and that is without any disrespect to the economic migrants themselves, who are extremely hard-working people with laudable motivation. However, other issues arise which, we dealt with earlier. They need to be addressed and all these proposals need to be seen in that context.

We need to have up-front honesty from the Government about this, and answers to the very relevant questions that my hon. Friend the Member for Ashford posed to them. This amendment would provide a means of achieving those answers.

Joan Ryan (Labour, Enfield North)

I can assure the hon. Member for Hertsmere that he will get nothing but up-front honesty from the Government. I am pleased to say that although I cannot accept this amendment, I do not think that the hon. Gentleman and his party will have any need to require me to when I explain to them that the measures we are taking will meet exactly the requirement that they have outlined with regard to reporting to Parliament. Like them, our view is that all these measures are about creating greater transparency and that should be married to appropriate scrutiny. That is exactly what we are attempting to achieve here and what I think these measures when implemented will do.

We have ranged across the whole of the points-based system and this clause is in fact about in-country appeals, but I will cover some of the points that the hon. Gentleman has made on the points-based system. Suffice it to say that the points-based system is an important policy that we have brought forward, which will help us to ensure that migration to this country meets the needs of this country. It is the case—and the hon. Member for Hertsmere has made the point himself—that, although there is a balance to be struck, there is economic gain to this country from appropriate immigration.

James Clappison (Conservative, Hertsmere)

Will the hon. Lady give way?

Joan Ryan (Labour, Enfield North)

I will give way in a moment.

The points-based system, working in conjunction with the migration advisory committee, is a crucial element which we have not discussed here this morning. I will be careful as I do not want to range outside the scope of the clause. It is very difficult to cover some of the points made by the hon. Gentleman if I do not slightly push the boundaries; I hope that you will bear with me, Mr. Illsley.

The operation of the points-based system with the migration advisory committee is a crucial relationship. When hon. Gentlemen ask how high or low the numbers might be and where the bar will be set, they will know that the migration advisory committee will be in a position to advise on just that and make sure that, whatever the list of occupations and whatever occupations we have skills gaps for, we will be able to use the points-based system to recruit to fill those skills gaps. The points-based system will allow us to be flexible over periods of time rather than be tied to an exact number at an exact point in time. Together the points-based system and the migration advisory committee will ensure that migration meets the economic needs of the UK.

The hon. Gentleman will also know that with regard to the numbers, whether higher or lower, it will be employers as well as colleges, universities and other higher education institutions that will sponsor applicants from outside the UK coming into the UK. Of course, they will also have a responsibility to ensure the legitimacy of applications. They will subsequently be subjected, as ever, to rigorous checking. There are occasionally issues about that matter in various posts, but the clause is about not out-of-country application but in-country application. Opposition Members may wish to have an annual report that would cover everything, which will indeed be the eventual outcome, but I presume that the report that they are asking for under the clause would be to examine the operation of these measures following the implementation of the points-based system.

Mr. Clappison rose—

Damian Green rose—

Joan Ryan (Labour, Enfield North)

I give way to the hon. Member for Ashford.

Damian Green (Conservative, Ashford)

It is good to see that deference still operates in parts of the Conservative party.

The Under-Secretary will be aware that we have tabled similar amendments to various parts of the Bill, because we believe in the Government reporting back to Parliament and believe that that should be as widespread as possible. We feel that this clause is so important that such reporting is particularly important under it.

The Under-Secretary’s point about the migration advisory committee is interesting and, in many ways, welcome. Is she saying that it will set overall numbers, or will it just examine individual sectors?

Joan Ryan (Labour, Enfield North)

I am saying that that committee, whose establishment is imminent, will advise the Government. The responsibility will remain with the Government.

James Clappison (Conservative, Hertsmere)

I am grateful to the Under-Secretary for giving way. I did not say that there was an economic benefit from migration, and she must answer the point that was made by Migrationwatch. On the advisory committee, what will its advice be? Will it be a number, or advice on the skills that employers say are needed in the economy? Will the migration advisory committee just be the renamed skills advisory board, which the Government thought about all along and mentioned in their paper?

Joan Ryan (Labour, Enfield North)

It is good that hon. Members are so interested in how the migration advisory committee will operate.

James Clappison (Conservative, Hertsmere)

Oh, we are.

Joan Ryan (Labour, Enfield North)

It is a very important new measure. It will advise the Government on attributes needed and on what skills shortages there are, and it will be able to gather evidence from employers, businesses, higher education institutions and others. It will therefore be able to inform the Government so that we can make decisions about the categories in the points-based system that are related to our needs. It is clear that the committee and the points-based system will have a strong relationship.

Mr. Clappison rose—

Joan Ryan (Labour, Enfield North)

I think I should just answer a few of the points that the hon. Gentleman raised with me earlier before I am overtaken by the paper that is flowing towards me at a satisfying rate of knots.

The purpose of the points-based system is to make the application process much simpler, so reducing the scope for error—a point that has been much raised from the Opposition Benches. Applicants will be told what they need to submit as evidence, and if they do so they will get the points. There will therefore be less scope for discretion and thus less scope for error. I disagree that the changes will require applicants to seek legal advice earlier in the process; in fact, quite the opposite. As the hon. Member for Hertsmere quoted me as saying, they will introduce more objectivity and much less subjectivity into the process, which can only be a good thing.

We are always open to representations from all individuals involved in the process, but I do not agree with the views of the anonymous individual that the hon. Member for Ashford gave us the benefit of hearing. Obviously, everything is subject to review, but it is not our view that the highly skilled migrants programme is working in the way that the anonymous evidence-giver appeared to say.

Much was said about the requirements under the points-based system. The question was asked, what exactly will they be? The exact requirements have not yet been finalised, but the revised immigration rules for the highly skilled migrants scheme set out the sort of evidence that we are likely to require from highly skilled migrants under tier 1 of the points-based system, which will replace that scheme. That includes such things as degree certificates to prove academic qualifications, wage slips to prove earnings and recognised certificates to prove English language ability. Hon. Members may want to see the list in detail. I am happy to be able to tell them that they can find that in appendix 4 to the immigration rules. We are reviewing the effectiveness of the changes to the highly skilled migrants scheme, and as a result of that review the evidence that we require under tier 1 may differ in some respects. However, the highly skilled migrant rules will give the Committee an idea of our thinking.

In respect of students, again the exact requirements have not been finalised, but will not be onerous. Students will need to provide a certificate of sponsorship from their university or college. They are also likely to need evidence, such as bank statements or evidence of sponsorship, to show that they can pay their course fees and maintain themselves within the UK.

David Davies (Conservative, Monmouth)

Will the Under-Secretary take steps to ensure that we see an end to the scandal of offices being set up as supposed language schools or other centres of learning when in fact they are no such thing and are just a front to allow people to get into this country while pretending to be students? I know from personal experience that that practice is extremely widespread. My wife is eastern European and told me that it was a ruse used by many people before the enlargement of the European Union, and it is presumably still going on now for countries outside it.

Joan Ryan (Labour, Enfield North)

The hon. Gentleman makes an important point. He will know from the discussions that we have had throughout proceedings in Committee that we are doubling our enforcement resource and bearing down on both illegal employment and the kind of practice to which he refers. It is something that we would take very seriously and seek to take enforcement action against, so he can rest assured that enforcement is at the top of our agenda—it is a priority for us. That is evident in the Bill.

I want to give hon. Members some reassurance about how the effects of clause 19 will be scrutinised. They will be scrutinised in the following ways. The independent inspectorate will include a number of key themes relevant to the operation of the points-based system, including its appeals process and the operation of clause 19. The inspectorate will report annually to the Secretary of State, who will have to lay its report before Parliament. For all intents and purposes, that meets the requirements of the amendment tabled by the hon. Member for Ashford and the comments by the hon. Member for Rochdale.

Furthermore, in accordance with Cabinet Office guidelines, our regulatory impact assessment commits us to conducting a post-implementation review of the whole Bill, again including clause 19. We will place a copy of the review’s report in the Library. The further report that the amendment would entail would be unnecessary and would not justify the resources needed to prepare it. However, I hope that what I have said about the annual report, which will be laid before Parliament, will meet the amendment’s requirements.

Damian Green (Conservative, Ashford)

I am grateful for the Under-Secretary’s last remark. It will be interesting to know how long it will be before we have the impact assessment, and how detailed it will be. I am glad that she has taken note of our point.

The Under-Secretary started by committing the Government to transparency and openness, a deathbed conversion that will be very welcome if it turns out to be true. However, in the context of those remarks, I observe that she carefully avoided answering the salient point that my hon. Friends and I made about whether the migration advisory committee will advise on the numbers of people who will be allowed to enter in any year.

The hon. Lady returned repeatedly to the point that Ministers, not the migration advisory committee, would take the final decision. Of course that is the case; advisory committees advise, Ministers decide. But on what basis are Ministers making that decision? Will the advisory committee really say, “We need more nurses, teachers or IT technicians this year,” or will it say, “Overall, we reckon the number for this year is x”? That is absolutely central to the workings of the migration advisory committee and the Under-Secretary notably failed to respond to that point.

James Clappison (Conservative, Hertsmere)

In the Under-Secretary’s very patient and generous acceptance of questions, was it not extremely illuminating that in her response on this very point, not only was there no mention of a limit, but there was no mention of any factors to be taken into account by the so-called migration advisory committee other than skills, and what I think will be regarded as employment opportunities? There was no mention of housing, infrastructure or the other myriad factors that should be taken into account in managing migration.

Does my hon. Friend agree that this is a case of the Government renaming what they originally wanted—a skills advisory body, which was in their White Paper—as a migration advisory committee, and pretending that it will advise on migration rather than skills? As the Under-Secretary’s reply made absolutely clear, that is all it will do.

Damian Green (Conservative, Ashford)

I will not be tempted too far down that route, Mr. Illsley.

Joan Ryan (Labour, Enfield North)

The migration advisory committee will indeed be about migration; it will not be limited to skills, although they are extremely important. It will consider wider issues but they will be announced at a later date.

Damian Green (Conservative, Ashford)

I am grateful for that extremely useful clarification.

The hon. Lady said that the removal of discretion would reduce the error rate in the appeals system under the clause. It is hard to believe that any Minister could make that assertion with a straight face, given the constant stream of abject failures that result from an over-reliance on technology; this may well be another one.

My hon. Friend the Member for Peterborough mentioned the health applications, which is the most recent example, but one does not need to go beyond the Home Office to know that it has happened before. The search for an automatic, form-filling solution in which everything will go through perfectly smoothly is a chimera. The Government have failed in that search many, many times and the clause is yet another example of it. I fear that, once again, human misery will be increased by that search, as it has been before. Far too often, the individuals involved find themselves faced by a system that appears to them to be Kafkaesque in its inability to respond to individual human circumstances. If the clause ends up by establishing yet another system like that, it will not just be Ministers who regret it but everyone, particularly those who get sucked into having to use this appeal system. I put that warning on the record to Ministers.

Stewart Jackson (Conservative, Peterborough)

I want to reiterate the general comments made by my hon. Friends, but I would also like to make reference to my particular concerns about the points-based system. My comments are based on the experience that I have had as an MP dealing with the issues arising—I put it no more pejoratively than that—from the EU migration from May 2004 onwards.

Two specific points concern me. First, as Sir Andrew Green said in his evidence, the Government and the migration advisory committee will be almost solely driven by large employers and certain sectors—

Eric Illsley (Labour, Barnsley Central)

Order. The hon. Gentleman is going far too wide of the amendment and the clause. If he wishes to continue speaking, he must come back to the amendment.

Stewart Jackson (Conservative, Peterborough)

Thank you, Mr. Illsley. Secondly, I am not yet reassured that other factors will be taken into account by the migration advisory committee, which will advise Ministers, in particular the revenue support grant to local authorities that must deal with the issue of the large-scale migration that may occur as a result of this particular points-based system.

Damian Green (Conservative, Ashford)

I beg to ask leave to withdraw the amendment.

Clause 20

Damian Green (Conservative, Ashford)

I beg to move amendment No. 150, in clause 20, page 11, line 15, after ‘officer’, insert

‘and a constable in the UK Border Police Force established under section [Establishment of UK Border Police Force]’.

Eric Illsley (Labour, Barnsley Central)

With this, it will be convenient to discuss the following: amendment No. 151, in clause 40, page 21, line 41, after ‘constable’, insert

‘, including a constable in the UK Border Police Force established under section [Establishment of UK Border Police Force],’.

New clause 4—Establishment of UK Border Police Force—

‘(1) There shall be a body corporate to be known as the UK Border Police Force.

(2) The UK Border Police Force shall have the functions of—

(a) detecting and removing illegal overstayers;

(b) protecting UK borders;

(c) investigating employers of illegal immigrants;

(d) preventing and detecting human trafficking; and

(e) such other functions as the Secretary of State may by order determine.

(3) Membership of the UK Border Police Force will be comprised of officers from—

(a) the Immigration Service;

(b) HM Revenue and Customs;

(c) the Serious Organised Crime Agency;

(d) specialist port police forces;

(e) the Metropolitan Police Security Command;

(f) the Security Services; and

(g) such other organisations as the Secretary of State shall by order determine.

(4) Before making an order under subsection (2)(e) the Secretary of State shall—

(a) publish proposals;

(b) consult members of the public and stakeholders; and

(c) lay a draft before each House of Parliament.

(5) Bodies to be consulted under subsection (4)(b) shall include—

(a) the Metropolitan Police Commissioner;

(b) representatives of the Association of Chief Police Officers;

(c) the Director General of the Immigration and Nationality Directorate;

(d) representatives of the Serious Organised Crime Agency;

(e) representatives of the Association of Police Authorities; and

(f) such other people as the Secretary of State shall determine.’.

and amendment (a) thereto, leave out lines 2 to 7 and insert—

‘(2) The UK Border Police Force shall have the functions of—

(a) protecting UK borders;

(b) strengthening frontier protection against threats to the security, social and economic integrity and environment of the United Kingdom;

(c) preventing and detecting human trafficking;

(d) maintaining and improving a safe, ordered and secure environment in ports; and

(e) such other functions as the Secretary of State may by order determine.’.

Damian Green (Conservative, Ashford)

With this group of amendments, in particular new clause 4, we come to the biggest failure of omission of the Bill; it makes several failures of commission, but this is the issue that would be most important in making it defective. We all agree—it is one of the issues that does not divide any of the parties—that we want a robust border system and we want our borders to be policed and guarded much more effectively than they have been in recent years. There is an enormous coalition behind the idea of a specialist border force.

Kitty Ussher (Labour, Burnley)

Will the hon. Gentleman give way?

Damian Green (Conservative, Ashford)

That wins a record for early interventions, but I will happily give way to the hon. Lady.

Kitty Ussher (Labour, Burnley)

The hon. Gentleman mentioned his proposals for a border force, which are outlined in the new clause. Why does he think that Migrationwatch, when it gave evidence on Tuesday, as I understand it at the request of his party, said that the last thing that the Home Office should do is have a reorganisation of the kind that he proposes?

Damian Green (Conservative, Ashford)

I was going to come to Migrationwatch later in my remarks. At this stage, I merely make this observation; if the only body that supporters of the Government can pray in aid for their policy is Migrationwatch, then matters have come to a pretty sorry state for Ministers.

I agree with Migrationwatch on some issues; I disagree with it on some other issues. The fact that the Government can find no one else in the entire world to support their position, other than Migrationwatch, is both noteworthy and fundamentally hilarious. It shows how isolated the Government have become and how desperate Ministers have become.

I turn to the people who have huge expertise in policing, and who are in favour of our proposals. It is clear that any country that is serious about its security—and never has that been more important than it is now—must have properly policed borders. I suspect that Ministers and even the hon. Member for Burnley would agree with that.

It is also clear that, as a series of islands, the United Kingdom ought to find its borders relatively easy to protect, as compared with countries that have huge land borders, particularly with countries whose economies are much poorer than theirs. That applies to the United States and its southern border, and countries with borders on the eastern edge of the EU. As was mentioned, those borders have moved in the past few years, but the same conditions apply now as applied a few years ago. The overall point remains that Britain ought to be relatively easy to protect, yet we have one of the most inefficient and porous border protection systems in the world. Under this Government, we do not know who is coming in or going out. My party has always found that unacceptable.

The Under-Secretary is perhaps about to repeat the canard that it was a Conservative Government who removed border controls. I remind the Committee that they took off controls within the EU. It was in 1998—the last time I looked, this Government were in power then—that controls for the rest of the world were removed. That was one of the litany of disastrous decisions on immigration policy that this Government have taken—it must be in the top three worst ones—and is one reason why Britain does not have effective border controls. [Interruption.] My hon. Friend the Member for Peterborough invites me to discuss the notorious case of the one-legged roof-tiler who was allowed into this country, but as it is probably not in order, I will not do so. However, he makes a viable point, and perhaps the Minister should stop giggling, as his predecessor had to resign over the incident. That was one resignation that actually happened.

The problem is that no single UK-wide force is charged with securing our borders, preventing and detecting illegal immigration and tackling people trafficking. Under the present arrangements, several different agencies are involved, and they report to different Cabinet Ministers. There are six different bodies responsible for one part or another of defending our borders—the immigration service, Revenue and Customs, the Serious Organised Crime Agency, specialist port police forces, the Metropolitan Police Service security command and the security services—so it is not surprising that there are problems. With the best will in the world, such fragmentation of responsibility is likely to lead to problems.

Talking about organisational fragmentation leads directly to the point that Sir Andrew Green made in evidence, which was that at difficult times one should not try to reorganise things. I believe that that was the basis of his argument, because he went on to say that one day a border police force might be useful. Indeed, the Minister seemed half to agree with him in what I thought was one of his more intriguing remarks during the evidence session.

Sir Andrew Green is perfectly free to make that point, but Ministers are not. In the midst of a crisis at our borders, they are, of course, in the throes of the most enormous reorganisation of the whole immigration department. They are regionalising it for no particular purpose, they are engaging in what is called a transformation programme—what is being transformed is not at all obvious to anyone who deals with the IND—and they are turning it into a shadow agency, which is another intriguing proposition that will produce benefits as yet unquantified by anyone. Ministers are going through three different reorganisations at the same time, so they simply cannot say with a straight face that reorganisation is a bad idea at this time.

There are six agencies dealing with our borders, and it is perfectly clear that the system is not satisfactory. Within those agencies, there are obviously many thousands of people who are, one way or another, responsible for protecting our borders. We seek to bring together those disparate groups of people so that they can be much more coherently managed and so that powers can be shared. At the moment, apart from the fragmentation inherent in the involvement of so many bodies, there is the problem that different people have different powers and that often, particularly at small ports, the relevant collection of powers is not available to provide the degree of protection that people want.

As I said, across the various organisations, border security is dealt with by a nominal total of approximately 10,000 people. They would form the basis of the new force—we seek to co-ordinate them rather than, necessarily, to create more posts.

One of our reasons for proposing a border police force is the experience in other areas of crime prevention. As the Home Office has seen, specialisation of police services is effective in fighting new types of crime. The criminals involved in people trafficking and international terrorism are becoming increasingly vicious and sophisticated, so we need a unified force to detect illegal immigration and prevent the misery of the trade in human beings and the entry into the UK of terrorists or suspected terrorists. We are considering in detail whether the new force should be part of SOCA.

Ministers will be aware that we asked Lord Stevens, as one of Britain’s most distinguished police officers of the past few decades, to look at the details, and we are grateful to him for having undertaken that work. He has said that it is essential that Britain should have secure borders and that one element of that must be a dedicated and effective border police force. He is not the only distinguished police officer who has called for such a force. When SOCA was set up, Sir Ian Blair, the current commissioner of the Met, was quoted as saying,

“it surprised me that we did not have a national border police...I have always thought that having a national border police was a good idea...I am very supportive of this issue.”

Not only are previous and current commissioners of the Met in favour, but the former head of the Association of Chief Police Officers has also called for a single border force. Sir Chris Fox said that a single force would have

“total responsibility for all our points of entry...I think that will make us a far more co-ordinated organisation against criminality and illegal entry...we need all those objectives being brought together with one organisation that makes decisions about when is the right time to act”.

So, many distinguished policemen support the idea, and so does the Home Affairs Committee. In its 2001 report on border controls, it recommended that

“existing border control agencies should be combined into a single frontier force on the basis of secondment and direct employment, but with clear lines of communication back to the parent agencies. Pending the creation of a single frontier force, strategic co-direction of better joint working should be provided by a ministerial group.”

That was six years ago. It called for better co-ordination—the Minister will no doubt argue that that is being provided—as a step towards a unified agency. However, in those six years, the Government have chosen to ignore that wise advice.

Finally, while I am quoting those who agree with us, I welcome the support of the Liberal Democrats, who have tabled an amendment to which, I dare say, the hon. Member for Rochdale will speak. They, too, argue for a truly integrated force. I hope, therefore, that the Committee understands that it would be a coalition of people including some with widely differing views on immigration policy, and various other things that we are discussing, but who are united in their desire for a practical proposal to make our borders more robust. Any country serious about its security ought to have properly policed borders, but ours are not. We are not defended properly against drug dealers, people smugglers, gun importers or terrorists, all of whom find it too easy to bypass the current system.

The Government’s big idea, which I dare say we will hear again, is ID cards, which demonstrates that their priorities are completely wrong. We have seen already from our debates on this Bill that in protecting our borders they would be ineffective and expensive. They would waste up to £20 billion without performing one of the most basic tasks—securing our borders. We think, therefore, that our approach is much more practical and are grateful for the support of many of those with the most expertise in the area. We think that there is an enormous gap in the Bill. If it is aimed at making our borders safer, it will fail in its endeavour, unless the Minister accepts the new clause. I commend my amendments and new clause 4 to the Committee.

David Davies (Conservative, Monmouth)

My colleague on the Front Bench spoke at length, and eloquently and powerfully, in favour of a border security force. I do not wish to reiterate all his points. Obviously, we all agree on the problems with maintaining border controls at the moment—hence the Bill before us.

I visited Cardiff airport recently, at the invitation of customs, to see how they do things. I noticed that there were various organisations with different powers all trying to do essentially the same job—to manage immigration. I have to say that the system seemed to work fairly well in Cardiff, although, obviously, when a politician visits anywhere—[Interruption.] Yes. As we all know, unless we are all completely naive—I am sure that no Member is—when we go on visits, we tend to see what people want us to see and hear what they want us to hear.

I felt, however, that things in Cardiff were working quite well because it is a small airport with a relatively small number of people, all of whom have got to know each other and, therefore, can call upon each other for help when required. Quite often such help is required because an immigration officer with one set of powers sometimes has to ask somebody from passport control, for example, who has other powers, to intervene because they cannot do the same things. I picked up another message: the good working practices that I saw in Cardiff are not present at larger airports, such as Heathrow, or larger ports, where a greater volume of personnel cannot get to know each other in the same way. People do not know each other or who to call when they have a problem. The whole system, therefore, is rather disjointed.

Damian Green (Conservative, Ashford)

I remind my hon. Friend of a very powerful point made on Second Reading. Cardiff might benefit from being small enough for people to work together, but large enough for them actually to be there. My hon. Friend the Member for Hexham (Mr. Atkinson) pointed out that at Newcastle airport, and others slightly smaller than the one at Cardiff, there is often no protection at all. For many airports in the country it is not a question of whether people work together—there is no one there at all.

David Davies (Conservative, Monmouth)

My hon. Friend makes a good point. Cardiff airport, in effect, had peripatetic customs officers who travelled between Cardiff, Bristol and various other airports and ports. By a remarkable coincidence, it just so happened that, on the day that I visited, a whole minibus full of customs officers turned up. That was very fortunate indeed!

My hon. Friend made a good point: there are not enough people in many smaller ports. Another point raised with me was that the equipment used for screening containers and people—

Sir David Amess (Conservative, Southend West)

I remind the Committee that with this we are discussing the following: amendmentNo. 151, in clause 40, page 21, line 41, after ‘constable’, insert

‘, including a constable in the UK Border Police Force established under section [Establishment of UK Border Police Force],’.

New clause 4—Establishment of UK Border Police Force—

‘(1) There shall be a body corporate to be known as the UK Border Police Force.

(2) The UK Border Police Force shall have the functions of—

(a) detecting and removing illegal overstayers;

(b) protecting UK borders;

(c) investigating employers of illegal immigrants;

(d) preventing and detecting human trafficking; and

(e) such other functions as the Secretary of State may by order determine.

(3) Membership of the UK Border Police Force will be comprised of officers from—

(a) the Immigration Service;

(b) HM Revenue and Customs;

(c) the Serious Organised Crime Agency;

(d) specialist port police forces;

(e) the Metropolitan Police Security Command;

(f) the Security Services; and

(g) such other organisations as the Secretary of State shall by order determine.

(4) Before making an order under subsection (2)(e) the Secretary of State shall—

(a) publish proposals;

(b) consult members of the public and stakeholders; and

(c) lay a draft before each House of Parliament.

(5) Bodies to be consulted under subsection (4)(b) shall include—

(a) the Metropolitan Police Commissioner;

(b) representatives of the Association of Chief Police Officers;

(c) the Director General of the Immigration and Nationality Directorate;

(d) representatives of the Serious Organised Crime Agency;

(e) representatives of the Association of Police Authorities; and

(f) such other people as the Secretary of State shall determine.’.

and amendment (a) thereto, leave out lines 2 to 7 and insert—

‘(2) The UK Border Police Force shall have the functions of—

(a) protecting UK borders;

(b) strengthening frontier protection against threats to the security, social and

economic integrity and environment of the United Kingdom;

(c) preventing and detecting human trafficking;

(d) maintaining and improving a safe, ordered and secure environment in ports; and

(e) such other functions as the Secretary of State may by order determine.’.

David Davies (Conservative, Monmouth)

I was getting into my stride just before we adjourned this morning, but lunch and a few hours of work at the computer have taken the wind out of my sails, unfortunately. Suffice it to say that I was speaking about the work that I saw taking place at Cardiff airport, and the importance of joint working in a border security force. There is little that I can add that has not already been said by me or by my hon. Friend the Member for Ashford, so I will leave it at that. I hope that Government Members will consider supporting new clause 4.

John Hemming (Liberal Democrat, Birmingham, Yardley)

There is a slight difference between the two Opposition parties on the responsibilities of a UK border police, and, more substantially, on whether there should be a UK border police.

Earlier, evidence from Migrationwatch was referred to in respect of an organisational matter. I would like to quote from a report by Sir John Wheeler in 2002 about airport security. Obviously, there are several issues at ports. Security is one, in the sense of terrorist attacks on ports, but there are also responsibilities in respect of immigration. My party’s argument is that there is merit in having an organisational structure whereby a group of people under one management structure are responsible for such issues.

Paragraph 3.32 of the Wheeler report states:

“Although national co-ordination between the border agencies has improved, there is clearly room for better co-ordination between the agencies on the ground.”

Paragraph 4.18 states:

“It is widely held within the airport security community that greater clarity is needed around the role of the uniformed police, at both designated and non-designated airports”,

and paragraph 4.19 states:

“Statements of Service Provision have not guaranteed the co-operative working which ought to characterise policing at the UK’s major airports”,

and so on. The rest is not particularly important.

The report deals with security at airports. I am told that four police forces are involved in policing at Heathrow airport—I have not worked out exactly which four they are—as well as the railway transport police, because Heathrow has railway and tube stations. Her Majesty’s Revenue and Customs and the immigration people are also there.

I refer hon. Members to a study that examined a similar issue in Liverpool, where several different agencies were dealing with an area. A decision was made to place everybody in the same building, although their management structures were different. That is a sort of halfway house—it is a move in the right direction—but, frankly, if one is to get proper co-operation on all the security issues at a border, the management structure must be much simpler. Obviously, airports are not physically the edge of the country, but, from the point of view of people coming in, they are, in essence, the border. The Government are making a mistake in not trying to simplify the management structure.

That situation at Heathrow, where there are five different police forces as well as all the other agencies that have been referred to, is a mistake. There is not necessarily any great merit in dwelling at length on how one handles the process once someone gets into the country. My party argues that they are the responsibility of the ordinary police, but the Conservative position is that they should be the responsibility of the border police. Regardless, from a management perspective, managing a single border force would allow a far better job to be done.

We discussed previously what would happen if somebody were to get past the immigration officer. Does everyone else say, “No, that is not my job, it is the designated immigration officer’s job to chase that person”? Do they allow that person, huffing and puffing, to go past four different police forces, the railway police, HMRC and the security services because it is the immigration person’s job and under the law only they can do it? That is a mistake. On that basis, we support new clause 4, but obviously with amendment (a).

Stewart Jackson (Conservative, Peterborough)

We have received a copy of “Enforcing the rules” by the Home Office with a foreword by the Minister. I know irony is not dead in the Home Office because one of the chapter titles is “Making it happen”, which is something we have not seen from the Home Office for the past 10 years.

I would be interested to hear the Minister’s reasoned, coherent objection to a border agency. I have examined the literature and the comments of a previous Home Secretary, the right hon. Member for Blackburn (Mr. Straw), in his response to the 2001 Select Committee on Home Affairs report. There seems to be no real issue of principle. Indeed, no practical reasons have been given for the Government to resist the recommendations of a number of people who are experts in their field to have a border agency. He said at the time that there would be a lot of links with inland operations, a reduction in skills and objectives to the lowest common denominator—the meaning of which I confess to not fully understanding—and disruption caused by reorganisation. Given that many other European countries have been able to put into place and continue to have successful border agencies or equivalent organisations—Austria, France, Greece, Poland and Portugal, for example—I am astounded that we are not in a position to learn anything from the European experience.

I would like the Minister to answer a point concerning the capital and revenue costs of the likely border agency. In that document, which was published on 7 March—it is an exquisite example of new Labour gobbledegook, but I beg your indulgence, Mr. Amess—the Government pledge to

“redesign our existing intelligence units so that they manage the flow of information into, through and out of the organisation in a more structured and systematic way”.

There is, obviously, the obligatory commitment to a step change. This is the important part:

“create a function in each region to collect, analyse and disseminate information, and link this into HMRC, DWP, SOCA, police, SCDA and local authorities, allowing them to focus on local compliance and enforcement priorities”.

My challenge to the Minister is: is he seriously suggesting that the commensurate costs, both capital and revenue, associated with that level of co-ordination across all those agencies, would always come out lower than creating a border agency as proposed by my hon. Friends and indeed, in a different way, by the Liberal Democrats?

Iain Wright (Labour, Hartlepool)

I was particularly interested during the morning sitting by the contributions of the hon. Member for Monmouth, particularly his comparisons with regard to Cardiff international airport and Newcastle international airport. It seemed that the crux of his argument was that smaller airports such as Newcastle would benefit from a single UK border force. As a north-east MP who is very proud of what has been going on with regard to the expansion of Newcastle and Durham Tees Valley airports, may I point out that Cardiff had2 million users in 2006 and Newcastle international airport had 5.45 million last year?

I think that that undermines the Conservatives’ argument on the matter. It shows the weakness of the intellectual argument, but also profound ignorance of the north-east region.

David Davies (Conservative, Monmouth)

I am delighted that the hon. Gentleman has given way but I must point out to him—perhaps he was concentrating on other matters when I spoke—that I did not mention the north-east at all. The point that I was making was that the larger the airport becomes, the harder it is for personal relationships to develop between the different people responsible for policing and, therefore, the less effective that policing is likely to be—hence the need for a border security force. It certainly was not a comment on the abilities of anybody involved in policing in any particular airport.

Iain Wright (Labour, Hartlepool)

I am extremely grateful for that intervention, but I now find the argument even more preposterous—Newcastle international airport is apparently not even in the north-east. That is absolutely unbelievable. The hon. Member for Monmouth cited the argument advanced on Second Reading by the hon. Member for Hexham (Mr. Atkinson) that Newcastle international airport often does not have immigration officers. He advanced that as an argument for new clause 4 and I am saying that that argument is intellectually weak.

Liam Byrne (Labour, Birmingham, Hodge Hill)

Will my hon. Friend remind me how many Conservative MPs there are in the north-east of England?

Iain Wright (Labour, Hartlepool)

Bear with me—one!

Liam Byrne (Labour, Birmingham, Hodge Hill)

I will respond to the points raised as quickly as I can. I suppose that I should acknowledge the movement in Opposition policy. It would be churlish of me not to welcome the progress over the past 15 months. Only 15 months ago, we were hearing about policies for the renegotiation of the Geneva convention, the provision of offshore processing centres for refugees, a ring of steel—an idea that lasted about 15 seconds when the right hon. Member for West Dorset (Mr. Letwin) tried to defend it to John Humphrys—and the James review and slide 105, proposing to cut 50 per cent. of the immigration and nationality directorate’s budget.

That the Opposition have moved from the ring of steel to concrete plans regarding disorder at the border is some progress, but not perhaps as much as the hon. Member for Ashford would like to present. There are, however, some quite serious issues that we need to tease out. I have always been clear in the debates on the subject that I retain an open mind about the creation of a single border force in the future, but I have said consistently that I am yet to be persuaded by the proposals or that now is the right time.

The hon. Member for Ashford this morning prayed in aid some of the evidence that was presented by the Home Affairs Committee in 2000. No doubt, like me, he has read the evidence from the Association of Chief Police Officers, which said that, although a single border agency made broad strategic sense—I think that that was the phrase that it used—it was uncertain of the cost and benefits. There are potential benefits in this realm, and the question is whether there is a different way of achieving them.

The hon. Gentleman talked about the need to attack organised crime harder. We heard oral evidence suggesting that that was extremely important. Tackling that kind of crime is precisely why we set up the Serious Organised Crime Agency and pulled agencies together. As we heard in oral evidence, 25 per cent. of its budget is devoted to tackling illegal immigration.

On Second Reading, my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) asked whether there should be a greater alignment of powers. There is no legal barrier to aligning those powers. Section 8(2) of the Customs and Excise Management Act 1979 allows Treasury Ministers to designate Customs powers to immigration officers and, indeed, to anybody they class as a proper officer. Paragraph 1(1) of schedule 2 to the Immigration Act 1971 allows the Home Secretary to confer immigration powers on other people. Schedule 7 to the Terrorism Act 2000 allows immigration officers, police and Customs officers to act as an officer under the relevant schedules. With that power, we are trying to align police powers with those of officers on the border.

Therefore, there is no legal barrier to the alignment of powers. That leaves us with the question of whether there should be greater operational alignment of activities. I think that the answer to that is yes, which is precisely why there is a programme in place to help to deliver that.

The hon. Member for Peterborough raised an important question, which he put intelligently: how do we co-ordinate the intelligence that needs to be shared between the different agencies? If he has not yet been, I invite him to visit the joint border operations centre at Heathrow, which brings together four or five different agencies to screen intelligence from airlines. It has already provided us with 8,000 alerts and something like 800 arrests and is an excellent example of, asSir Andrew Green called it, the capability of British agencies to work together very well. There are already parts of the country where one can see what is, in effect, a single agency providing the primary line, with referral to specialist, secondary-line capabilities where needed. At Poole or Coquelles, Her Majesty’s Revenue and Customs lead the search, bringing in immigration officers where appropriate. At Blackpool, the police are in the lead, bringing in HMRC where appropriate. At Gatwick, immigration officers operate as Customs officers, referring back to HMRC as the secondary line where appropriate.

Many of these changes are already seen in practice. The benefits, therefore, could potentially be achieved by a different course. We have to weigh some of the risks against the changes. I have consistently said that, at a time when the terrorist threat to this country is severe, we risk a distraction if we reorganise; when we want focus, we will be asking people to reapply for their jobs. That is why I thought my hon. Friend the Member for Burnley was right to quote Sir Andrew Green:

“The last thing that it”—

the Home Office—

“should do at this juncture is have a reorganisation of that kind”.——[Official Report, UK Borders Public Bill Committee, 13 March 2007; c. 282, Q349.]

As Sir Andrew put it, organisations “are not Meccano”.

Damian Green (Conservative, Ashford)

Will the Minister give way?

Liam Byrne (Labour, Birmingham, Hodge Hill)

I will make one more point, with which, perhaps, the hon. Member for Ashford will help me. I understand that nobody, on any Bench in the House, is proposing the merger of the Army, Navy and Air Force. We recognise that different forces have different cultures, specialisms and traditions; those different capabilities and history are an important part of what makes them effective. Do we insist on integrated command and intelligence? Yes, we do. Does that require a full-scale merger? No, often not—different things can achieve the same effect.

The final example that I would give here is the United States, which was prayed in aid. The United States has had an interesting challenge with illegal immigration. Some papers, such as The New York Times, have estimated that the population of illegal immigrants in the United States has gone from7 million to 12 million in the space of a few years. Interestingly, during the same period the United States has been trying to introduce a single border force. Going around Dulles airport, one will indeed see a common primary line, but step into the second line and one will see the component agencies still organised in their traditional ways of working—that is five years on.

I was also interested in the reference by the hon. Member for Peterborough to European border forces. They are so effective that while this country has the lowest number of asylum seekers not since 1997 but since 1993, asylum claimants in Europe in the last quarter of last year went up—not down—by 14 per cent.

Damian Green (Conservative, Ashford)

Not least, because European borders have moved in the last few years, the hon. Gentleman may have noticed.

I want the Minister to return to his point about this being the wrong time to reorganise the Home Office. Can he therefore confirm to the Committee that the Home Secretary’s plan to split the Home Office in two is a dead duck?

Liam Byrne (Labour, Birmingham, Hodge Hill)

I am not entirely clear how that relates to border security, but perhaps that will become clear.

Sir David Amess (Conservative, Southend West)

Order. I admire the inventiveness of the hon. Member for Ashford, but I cannot see how that relates to the amendment.

Liam Byrne (Labour, Birmingham, Hodge Hill)

The hon. Member for Reigate looks poised to intervene—no, maybe in a moment.

There are no theoretical reasons why a single agency might be better at the effective co-ordination of components. To consider the kind of change proposed we would need to see a significant step up in performance. There is a second problem with the amendments, which come from ideas that have been drafted for prospectuses and manifestos, including by the Liberal Democrats, who came up with the idea first—the hon. Member for Birmingham, Yardley will correct me if I am wrong—or certainly some time ago. A number of observers might be concerned that the clauses as drafted are, frankly, slightly Blue Peteresque.

Sweeping Crown powers are placed in the hands of the Secretary of State without any provision for oversight of governance, which was and is of deep concern to ACPO. Only this morning we heard from the hon. Member for Ashford about the importance of parliamentary accountability, but there is no provision for that, despite placing Crown powers in the hands of the Secretary of State. Sweeping powers are put into regulations, a principle that the hon. Member for Ashford has spent two weeks arguing against, while large parts of business have fallen off altogether. There is, it appears, a separation of the regulatory functions of controlling admission, including the arrival of tourist and business travellers. It is true that the clause provides for the Secretary of State to determine other functions by order, but again I am surprised, given the arguments of the hon. Member for Ashford over the past couple of weeks, that such sweeping powers are put in regulations.

Then, of course, there is the risk of a new fragmentation because of the disconnection between, for example, visa-issuing posts abroad and in-country policing. That betrays a very 20thcentury concept of the frontier. The frontier is not an isolated place any more; it is intimately connected both abroad and in-country. To separate that and snap those links would be dangerous, but not as dangerous as what concerns me most—the proposal that the system would be underpinned by the cancellation of the identity cards project.

Time and again in the Committee we have heard from experts in the field who say that the fight against illegal immigration is mission-critical to the fight against illegal working. Sir Andrew Green said of illegal working that

“it is a very important pull factor and also an incentive for people to stay on illegally, which is another form of the same thing. There is no question about its importance.”

On the importance of biometric visas and ID cards for foreign nationals, Sir Andrew said that

“we believe that...ID cards will help substantially.”—[Official Report, UK Borders Bill Committee, 13 March 2007; c. 271-272, Q319, Q320.]

We also heard from the business community. Gordon McLardy said:

“It is very time-consuming for employers to check through the relevant documentation.”

He also said:

“The checks are not robust enough”

and that ID cards would be

“a dream for any employer.”—[Official Report, UK Borders Bill Committee, 1 March 2007; c. 71-77, Q144, Q169, Q145.]

He said that he fully supports them. What we heard from Sir Andrew Green and from Gordon McLardy echoed a crescendo of voices not from my side of the House but from the Opposition side. The right hon. and learned Member for Folkestone and Hythe (Mr. Howard) wrote:

“We must protect our citizens in every way we can and, in my judgment, that includes ID cards.”

Dame Pauline Neville-Jones, the chair of the hon. Member for Ashford’s own security commission, said that

“measures we have of establishing identity are inadequate. We should not be stupid about that.”

Lord Stevens, the very man who was put in charge of the hon. Gentleman’s border advisory group, said that there are many savings to be had, especially in the fight against organised crime, which, as we know, accounts for 75 per cent. of illegal immigration. At this stage one would be forgiven for asking the question, “Is he thinking what I’m thinking?”

Stewart Jackson (Conservative, Peterborough)

Will the Minister give way?

Liam Byrne (Labour, Birmingham, Hodge Hill)

I shall give way in a moment.

How can it be right for the right hon. Member for Haltemprice and Howden (David Davis) to pull the plug on the database that provides the power for biometric visas, biometric identity cards for foreign nationals and the gold-standard biometric passports that we are now issuing? He is frankly setting himself up as the luddite of law enforcement.

The hon. Member for Reigate said that the objections were not on principle but on practicality. He was contradicted by the hon. Member for Ashford, who said that it was about principle and practicality, as recorded in column 225 of the Official Report. We know where the shadow Home Secretary, the right hon. Member for Haltemprice and Howden, sits.

My concern is that the new clause would be not a step forward but a step backward. We remain open to ideas once we see good proposals, and maybe Lord Stevens will be able to provide them. My great fear is that this is a soundbite for the news, not a shield for the nation. Frankly, it has been deep-fried in Steve Hilton’s focus groups. In its presentation it is saloon bar politics on a subject that warrants much better thought than it has been provided with this afternoon.

Sir David Amess (Conservative, Southend West)

Does the hon. Member for Peterborough wish to intervene?

Stewart Jackson (Conservative, Peterborough)

The Minister said that he would give way, but he has sat down.

Damian Green (Conservative, Ashford)

If my hon. Friend wishes to intervene on me, I am sure he will find some sympathy.

Half the Minister’s speech was quite serious. The other half was just garbage and not worthy of the proverbial wet Tuesday night in midlands towns that one of my hon. Friends got in trouble for talking about. I shall deal with the serious parts of the Minister’s speech. First, would the split in the Home Office that its Ministers, particularly the Home Secretary himself, have been touting around the media—and, I understand, Cabinet Committees—be relevant to a unified border force and the safety of our borders? Of course it would. The Minister’s whole argument, inasmuch as there was one in the serious parts of his speech, was that this is not the right time for such a force, yet the biggest change in the Home Office’s history is being touted at the same time. I gently suggest to him that that is not a solid piece of ground on which he can stand.

I know how much the Minister enjoys praying in aid Sir Andrew Green—he did it about five times in a 10-minute speech, struggling to find anyone else to support his point of view. Good for him; he hasSir Andrew Green on-side on this particular narrow issue. Nevertheless, Sir Andrew’s point is undermined by what is happening in the Home Office at the moment. Even if we do not get the Home Secretary’s gleaming vision of an organisation split in two, so that the police service and the Prison Service end up in different empires, which seems to be a recipe for even bigger disasters with non-communication than the onesthat we have seen in the past few months, we will still have the Minister’s radical reorganisation of the immigration and nationality directorate, with which he is happily proceeding at the same time as he is prepared to stand in this Committee and say, “We must not contemplate reorganisation because it will get in the way of doing the job.” On any level, his argument is incoherent.

Having said that, I was delighted to hear the Minister say that he will keep an open mind on our proposal. That is significant progress because I can sniff a U-turn months or years before it happens. If the Government wish to take on board more Conservative ideas, we are always happy to provide them and to continue to make the political weather during this Parliament, as we are doing. Genuine progress has been made because we think that the issue before us is important and that our proposal would make a big difference.

I was grateful that during the course of the Minister’s speech, he made it clear that there was no legal barrier to combining the various powers, which lies at the heart of our proposal. He said also that there was no operational barrier. Indeed, he gave helpful examples of where such a process can happen now. Any practical arguments, therefore, against our proposal have been blown away by him this afternoon.

The Minister mentioned the importance of SOCA. I agree that it was a good idea to set up that agency—we supported it—to fight serious and organised crime. He will be aware that among the senior police officers who supported a border force, there were murmurs of surprise because SOCA did not include one. He said that, in effect, in many parts of the country we already have a single agency on the front line. That is good, but we should follow through that logic and make it more coherent.

The Minister made some semi-serious points about possible deficiencies in the drafting of new clause 4. We would be happy to take amendments. So far, the Government have tabled a lot of amendments to the Bill, so if they want to table some to our new clause, they may—we are not proud. We want legislation to be as good as it can be. If he wants to do that, therefore, I am sure that we can come back to it at a later stage.

Let us consider the weight of evidence from those who know about such matters. Almost all are in favour of the proposal. In what I thought was a slightly half-hearted attempt to oppose it, the Minister was forced to rely on some fairly cheap soundbites and, indeed, at the start, on a speech no doubt prepared for Labour candidates during the 2005 election. I sensed that even he was embarrassed about having to deliver it in 2007 in this rather different political landscape.

I am now satisfied that there is no substantive Government argument against our proposal and, therefore, commend the amendment to the Committee.

Damian Green (Conservative, Ashford)

I beg to move amendment No. 92, in clause 20, page 11, line 29, after ‘293’, insert ‘and section 295’.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss amendment

No. 94, in clause 20, page 11, line 35, leave out paragraph (g).

Damian Green (Conservative, Ashford)

I beg the Committee to pay attention, as amendment No. 92 gives effect to amendment No. 93, which was considered with clause 18. I am sure the Minister will know that, as he will have remembered every detail of our debates on that clause. However, I will briefly repeat the points that we made about the amendments to clause 18.

The intention of the amendment is to save taxpayers’ money, as it would remove the unnecessary duplication of immigration officers rightly having to go through the various difficult and bureaucratic procedures involved in handling cash that has been seized. All members of the Committee will agree that it is a particularly sensitive area in which the reputation of the police is high, and we should do nothing that might affect it. The amendments would let the police do the work that they do at present, without replicating the systems for the immigration service.

Amendment No. 94 is similarly consequential on the previous amendments, and it would remove the powers of forfeiture from immigration officers. If the other amendments were accepted, the cash would be handed over within 48 hours, so the powers in subsection (2)(g) would not be necessary.

In a previous debate, the Minister made an interesting point about whether it would be operationally difficult to hand over the cash within 48 hours. It would be unfortunate if that were the case, given what we have heard about the tremendous integration of all the different services. On reflection, the Minister’s argument was not particularly compelling. The amendment would be a practical way forward that could remove a small risk that would be added to the system if the clause remained as drafted.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I think the amendments have been slightly distorted by their grouping and the fact that the related amendment has been withdrawn.

The remaining amendments would remove the provisions relating to the detention and forfeiture of cash, which would weaken the ability of immigration officers conducting search operations to seize cash because they would not be able to apply for the power of detention or forfeiture of cash seized. That would be problematical because it would remove one of the key powers with which we want to equip the immigration service. We want to increase, not decrease, the number of illegal-working operations and to be able to confiscate illegal wages and assets belonging to employers who break the rules or turn a blind eye or something worse. That is important.

A question was raised about training. As the hon. Member for Ashford rightly said, reassurances are needed because that is a sensitive area. I agree with the sentiment that he expresses.

The legal machinery that we seek to put in place effectively puts a gloss on the Proceeds of Crime Act 2002; it adjusts the existing legislation so that it works for immigration officers. Five important protections remain in place: prior judicial approvals, or the approval of senior officers before a search that is made explicitly for cash; a code of practice applies to the use of search powers that we propose to extend to encompass immigration officers; seizure can be for only 48 hours, then magistrates must approve it and the money must be paid into a high interest account; any request to retain or detain the cash means that magistrates have to be satisfied and anybody with an interest can apply to the court at any time; and, of course, if forfeiture is required, we have to convince magistrates that that is the right thing to do. There are also appeal lines to a Crown court. So, a number of protections are already set out in POCA and we are going to adjust them so that they apply here.

Cash seizure training is very important. We are asking HMRC and the Assets Recovery Agency to develop it with us, and we hope to have it up and running by the end of the month. I think that the hon. Gentleman will accept that the group of amendments is now slightly distorted and that its effect would be to weaken the power of immigration officers to police illegal-working operations. I hope that he is persuaded that there are sufficient protections in place, and that he will see fit to withdraw the amendment.

Damian Green (Conservative, Ashford)

I was agreeing with most of what the Minister said until he slipped in something about the Assets Recovery Agency, which is not his strongest argument, given what has happened. However, I take his point about the mix of the amendments, and the fact that the amendment that related to clause 18 has been withdrawn, so I beg to ask leave to withdraw the amendment.

Clause 21

Damian Green (Conservative, Ashford)

I have a technical question for the Minister. Subsection (1) says:

“A court making a forfeiture order about property may order that the property be taken into the possession of the Secretary of State (and not of the police).”

I assume that that allows the property to be forfeited to immigration officers, but I should be grateful for clarification as to what the practical effect of that part of the clause would be.

Joan Ryan (Labour, Enfield North)

The hon. Gentleman’s assumption is correct. The purpose of the clause is to give the courts extended powers so that property can be forfeited to the Secretary of State and immigration officers acting on behalf of the Secretary of State. At the moment, forfeiture is to the police rather than to the Secretary of State. The purpose of the clause is, therefore, exactly as he outlines.

Clause 22

Damian Green (Conservative, Ashford)

I beg to move amendment No. 120, in clause 22, page 12, line 30, leave out ‘six’ and insert ‘twelve’.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss the following amendments: No. 121, in clause 22, page 12, line 37, after ‘property’, insert

‘that has been held for twelve months’.

No. 122, in clause 22, page 12, line 38, after ‘where’, insert

‘all reasonable steps have been taken but’.

No. 123, in clause 22, page 13, line 7, at end insert—

‘(ca) may not allow disposal of property less than twelve months following its seizure,’.

Damian Green (Conservative, Ashford)

The effect of the first two amendments, amendment No. 121 being consequential on amendment No. 120, would be to extend from six to 12 months the period during which a magistrates court may make an order to return property to its owner. It is worth the Committee, and Ministers in particular, considering what constitutes a reasonable length of time during which somebody can claim back their property from the Government. I am sure that it is accepted on both sides of the Committee that the Government cannot be expected to hold on to a person’s property for an inordinate length of time or for an indefinite period. Clearly there has to be a cut-off point, but what is a reasonable cut-off point? We do not believe that extending that period from six to 12 months puts an extreme or disproportionate burden on the administration of justice.

There are positive arguments in favour of such an extension. It is quite likely that some people who have their property seized in connection with immigration offences, and might be entitled to it back, are some of the poorest, most vulnerable people in society. Previously, we have had some interesting exchanges about whether the force of the law is aimed at falling more on employers of illegal workers rather than the illegal workers themselves. There has been a fair degree of consensus that it is both more useful and more just to tackle the employers. It is also more efficient, as that would be the way to stop most illegal working. It is nevertheless unarguable that illegal workers will get caught up in the process. We have agreed that many of them are working illegally not only because they are in the country illegally, but because in their vulnerable position they can be exploited and paid below the minimum wage. They are therefore overwhelmingly likely to be poor.

The first and obvious point to make about that group of people is that any property seized from them will not amount to much. More importantly, it might be all their worldly goods. It is not a question of someone paying a fine; it might be everything that they have. In those circumstances, it is important to consider the length of time during which the property can be reclaimed. Ministers might consider whether there is not a moral obligation to keep the case open for as long as is practical, so that the small amount of property that such people have may be returned to them after a reasonable amount of time. Many of them will not be familiar with any kind of legal mechanism for retrieving their own property. Many of them will have little command of the language and absolutely no experience of the legal system in this country, and might well come from countries where for the state eventually to give back property that it has seized is a wholly alien idea. They are therefore unlikely to be sufficiently up to the mark to get their property back.

I would guess that many people who have lived their entire life in this country would be surprised to discover that they can get their property back from the state after it has been seized, but I think that that would be even more applicable to those who might be affected by this aspect of the Bill. Among that group, possible suspicion of the attitude of the state will be increased by some of the terms of the Bill, which they might find onerous. We have had discussions about how much control the Government should take, and are taking, over where people live and how often and to whom they should report. If someone has been arrested, had their property seized and been through a legal process, then come out the other end without having been convicted, they will be unlikely to want to come forward and make themselves known to the state. It may be worth considering giving them some encouragement to do so.

Amendment No. 122 would require the Secretary of State to take reasonable steps to identify the owner of seized property, taking account of the fact that the person may, in the circumstances, need help to retrieve their property. For example, it would be difficult to identify the owner of the property if it had been seized from one of the houses in multiple occupation, which we heard about in an evidence session, where many people live. I have heard in other forums of houses in which beds are rented out for eight-hour periods and occupied for 24 hours a day. Three and four-bedroomed family homes may have 30 or 40 people living in them.

It is not beyond the bounds of possibility that in such circumstances, identifying the owner of seized property will not be straightforward and it would not be enough for the authorities to sit back and assume that it would be clear. A few simple, routine steps could be taken that would establish what belongs to whom, and amendment No. 122 and the consequential amendment No. 123 would lay that obligation on the Secretary of State, so that in this relatively small corner of the powers and actions that the Bill promotes there would be some obvious fairness.

Joan Ryan (Labour, Enfield North)

During the exercise of their statutory functions, immigration officers can lawfully seize and retain property, which may include forged passports, forgery equipment and other evidence of immigration-related offences. In addition, the Bill gives the courts new, extra powers to cause property used by convicted offenders to commit immigration-related crime to be forfeited to the Secretary of State. At present, the immigration and nationality directorate lacks the necessary legal powers to dispose of property that comes into its possession.

The immigration service is increasing its capacityto investigate immigration-related crime and as a consequence the Home Office will incur rising costs in storing and increasing amounts of seized and forfeited property. In some cases, the retention of the property could become unlawful, so it is necessary to provide for the disposal of the property that is held by the IND in similar circumstances to those in which the police and SOCA can dispose of property. The powers have two separate aspects: first, the court has the power to order the disposal of the property, and secondly, the Secretary of State may make regulations for its disposal. I will come to that in a moment.

Many of the hon. Gentleman’s points were about ensuring that adequate and appropriate safeguards are in place in respect of the power of disposal. I will attempt to reassure him about the safeguards. In respect of amendment No. 120, he will know that clause 22 is intended to make provisions that are equivalent to the existing powers of disposal of the police; it is nothing further than that.

Increasing the time in which a person claiming forfeited property can apply to the court for a disposal order would be inconsistent with the existing legislation and I believe that it would be unjustified.

Where we are talking about forfeited property, there will already have been court proceedings, during which the court decided to make the forfeiture order. As part of those proceedings, a claimed owner would be able to make representations. For example, under section 25C of the Immigration Act 1971 the court must give an interested person the chance to make representation before forfeiting a vehicle used to commit a people-smuggling offence.

Once property has been forfeited, a person claiming the property will have a further six months to apply to the court for the return of the property, provided that they can show that they had nothing to do with the original offence that led to the property being forfeited. That is in line with the police and SOCA legislation, and it gives ample opportunity for the court to take account of the legitimate rights of an innocent property owner. The property owner can state their claim at the forfeiture hearing and they also have another six months in which to lay a claim before disposal.

If property is seized from a vulnerable person, the owner will be ascertained and in that situation the court can only order that the property is returned to the owner. So, the property has been forfeited because it has been used to commit a crime; the property will only be returned to that person, as I said, if they show that they had nothing to do with the crime. Therefore, there is protection for a vulnerable person.

In relation to amendments Nos. 121 and 123, the clause allows regulations to be made for the disposal of property where the owner cannot be ascertained, or where the court has already ordered forfeiture.

There are safeguards in the clause to protect the rights of the innocent property owner. Where a court makes a disposal order, that does not affect in any way the right of any person to bring legal proceedings for recovery of the property within six months of the date of that order. Under the police and SOCA regulations, property may be disposed of only after it has been in the possession of the Secretary of State for a year.

Therefore, where the owner cannot be ascertained, the clause absolutely meets the aims of the amendment that the hon. Gentleman has suggested, namely that the period of time before property can be disposed of is increased from six months to 12 months. It is in relation to forfeited property that the period of six months applies. As I said, the safeguard in that situation is that there has already been an order of the court and the person who wants to lay claim to the property can do so. So, if the property has been ordered to be forfeited, it is a period of six months before disposal; if the owner cannot be ascertained, the period before disposal is 12 months.

Those measures are appropriate safeguards. They apply at the moment, both to the police and to SOCA in disposing of property, and they are working well.

Amendment No. 122 is, in fact, unnecessary because in cases where regulations enable disposal of property because the owner cannot be ascertained, the Secretary of State must act reasonably under usual principles of administrative law. That point is already covered; the Secretary of State must take reasonable steps to ensure that the owner cannot be ascertained before disposal and they would be expected to demonstrate that that was the case.

Having given those reassurances, I hope that the hon. Gentleman is able to withdraw his amendment. I would reiterate that the safeguards apply; we meet some of his requirements, and where we do not extend the period of time to 12 months, that is because there has already been an opportunity at a forfeiture order hearing for the individual to lay their claim.

Damian Green (Conservative, Ashford)

I am very grateful for the Under-Secretary’s full exposition, in the light of which I am reassured and beg to ask leave to withdraw the amendment.

Damian Green (Conservative, Ashford)

I beg to move amendment No. 97, in clause 23, page 13, line 21, at end add—

‘(2) In section 21(2)(a)(i) of the Immigration, Asylum and Nationality Act 2006 (c. 13) for “two years” substitute “four years”.’.

This is an attempt to help the Government by putting into practice some of the rhetoric that we hear from Ministers. On Second Reading, the Minister rightly made great play of the Bill’s importance in attempting to crack down on illegal employment and, specifically, on those who employ illegal labour. As I mentioned in my remarks on the previous group of amendments, that was the subject of some of the most arresting evidence from witnesses. Indeed, over recent weeks the Government have embarked on a range of activities, some of which will be useful, but others worse than useless, in order to crack down on illegal working—a worthwhile ideal. One can see what they are trying to do.

Amendment No. 97 would help the Government by increasing the maximum penalty for those who knowingly employ illegal immigrants from two to four years in prison. That is dear to the hearts of the Minister and the Home Secretary, which is why I am hopeful that the amendment will get a sympathetic hearing from Labour Members. It refers to the common difficulty that we have debated in this Committee and with the witnesses: is the real problem with illegal immigrants tricking employers into believing that they are here legitimately or with employers deliberately employing them precisely because they are illegal immigrants?

Given that the Minister has been so assiduous in quoting Sir Andrew Green, it is only fair that I quote Jack Dromey, who made a very interesting point. He said that he had heard about Portuguese workers in this country deliberately obtaining false Brazilian passports so that they can pretend to be illegal workers and take jobs below the minimum wage. If their employers had known that they were legal workers, they would not have taken them. That shows the Alice in Wonderland state of some of our employment practices.

That tells us two things: first, some people are desperate to find work in this country but do not think that they can find any, even at the minimum wage, and secondly—this is significant for the amendment—some employers are ruthless and clued up enough to want to employ only illegal workers and would not contemplate employing legal ones. There is no difference of opinion on that in the Committee. We need to crack down on those people.

In parenthesis, clearly such activity might well promote illegal immigration on which, I am afraid, the Minister’s biometric passports and so on will have very little effect. We need a very strong deterrent for anyone wanting to indulge in such practices. The amendment would strengthen the Bill by sending out a clear message to the small number of irresponsible employers who damage the name of British business. Understandably, they are unpopular with trade unionists and employers organisations, who I know have been urging the Government to make sure that they crack down effectively on this type of illegitimate employment practice. This amendment enables the Government—indeed, enables the House—to send out a very clear signal of what we think about that type of exploitative employment practice. We think it should be unacceptable and we think that its consequences should be extremely serious. That is why we propose doubling the potential maximum penalty. I hope this finds favour with the Minister.

John Hemming (Liberal Democrat, Birmingham, Yardley)

The amendment goes to the nub of an issue that was raised previously by the trade unions but is also a concern of the CBI. The question is how we enforce immigration regulations. There is an element of consensus in both the trade unions and the employer organisations that we should crack down on those people who intentionally go out to employ undocumented workers—the example cited was supposed to be from Leicestershire.

The challenge is to distinguish between those people and the ones who get trapped in a situation where what is known in one part of the organisation is not necessarily known to the management. The challenge is to identify mens rea—the strategy of going for undocumented workers because they have no employment rights and therefore they can make more money out of them, or potentially not pay taxes and so on.

I am inclined to support this provision on the explanation given, but the challenge actually does not necessarily rest in the Bill. The view of the CBI is that these issues will be addressed in future circumstances. But it is very important indeed that we get the balance on this right; because otherwise one ends up with the situation that Jack Dromey referred to, which causes a lot of problems when you have legitimate employers but the balance between the work force and the employer changes. The subtleties here have a substantial impact.

Joan Ryan (Labour, Enfield North)

The clause is a minor technical amendment to ensure that there continues to be a power of arrest for the new offence of knowingly employing an illegal worker when the existing similar offence under section 8 of the Asylum and Immigration Act 1996 is repealed. This amendment will add the power of arrest with warrant.

Knowingly employing an illegal worker is a significant offence. The offence was introduced in the Immigration, Asylum and Nationality Act 2006, and we have already toughened up the offence. A person convicted of employing an illegal worker under the 1996 Act can only be fined, whereas under the new offence in section 21 of the 2006 Act, those convicted face a maximum of two years imprisonment and an unlimited fine or both.

It is indeed the case that many people we have taken evidence from have made a clear and significant point, as we do ourselves, about the role of illegal employment and the need to bear down on illegal employers. But I would say to the hon. Member for Ashford that our view is that the two-year maximum is an adequate and proportionate way of dealing with these offenders. It is comparable to other maximum sentences for non-violent crimes. His colleagues and, I presume, he himself supported the 2006 Act. This is a new offence. They made no objection at the time to the two years. He will also know that we have not yet implemented this measure, so it has not yet been tested as it is recent legislation. There is no current evidence that four years would be a better deterrent than two, so our view is as it was when that Act was introduced in 2006—that two years is the appropriate response and already represents a significant toughening of the measures.

Crispin Blunt (Conservative, Reigate)

The response to that is that one of the benefits of a Public Bill Committee is that we have been able to hear evidence, which the other Committee was not. The evidence has convinced us that four years would be more appropriate. If someone were sentenced to two years, how long could they actually expect to spend in prison?

Joan Ryan (Labour, Enfield North)

That would depend on a number of factors, not least that person’s behaviour in prison. It is not something on which I can give the hon. Gentleman an answer in years or months, as he is probably aware. I accept that he listened to the evidence. We have not only listened to the evidence but we had a significant amount of discussion on the matter while constructing the Bill. Like all those who gave evidence, we recognise the crucial significance of dealing with illegal employers, and particularly the notion of “knowingly.” That brings me to the points made by the hon. Member for Birmingham, Yardley.

There are civil penalties for those who are careless and employ an illegal worker but do not do so knowingly. Employing illegal workers is a serious matter—a criminal offence with a criminal conviction. A prison sentence of two years is significant and we should not lose sight of the fact that an unlimited fine can also be applied. On that basis, and because we do not have evidence that four years would be a greater deterrent than two, we are not able to support the amendment. I urge hon. Members to support the clause as it stands.

Damian Green (Conservative, Ashford)

I am disappointed that the Under-Secretary thinks that, particularly as I was not treading on the tentative ground of the fact that the tough clause in last year’s Act is still not in force, which she then brought up. I thought that I would forgo the opportunity to point out that that is yet another example of the classic problem with the current Home Office—the fact that it introduces legislation as a substitute or displacement activity for effective action. Last year’s provisions are not yet in place, but we are considering this year’s Act. We are promised an Act next year as well. Legislation is ever flowing, but activity on the ground is rather less visible. That is unsurprising, because the Home Office cannot get round to implementing all the legislation that it passes.

The fact that the two-year sentence is not yet in operation, meaning that we cannot hear any evidence as to whether it is effective, is not a particularly strong argument against the amendment. There is no evidence about two years, four years or any period that one cares to name, so the Under-Secretary cannot pray that in aid. As she rightly said, we supported that part of the 2006 Act because we believe not only that the offence is serious but that, considering the figures, it is increasingly common. The knock-on effects of it being known around the world that Britain is the place to come and work illegally are very serious. At the extreme end of horror are episodes such as the cockle pickers and the dead Chinese people in the lorry in Folkestone. However, even without such terrible tragedies it is bad in all sorts of ways for this country. It is bad for employment and for social cohesion that Britain has become one of the parts of the world in which illegal working is endemic. I am not reassured by the Minister’s arguments, so I seek to press the amendment.

Clause 25

Damian Green (Conservative, Ashford)

I beg to move amendment No. 124, in clause 25, page 13, line 29, after second ‘the’, insert ‘attempted’.

This amendment continues our attempt to inject some more toughness into areas of the Bill that we think need it. Its effect would be to amend the Immigration Act 1971—an Act from an era when Governments used to pass one immigration Act per Parliament—to create an offence of attempting illegal entry into the United Kingdom. It would significantly toughen the measures on facilitation in this clause.

It is not a matter of dispute across the Floor of the House that we wish to toughen up the laws against those who deal in the human misery of trafficking and the exploitation that it causes. I know that we shall consider those under later clauses. The amendment seeks to extend the reach of the law to those who try to help others to enter the UK illegally but are unsuccessful. It is clearly a common feature of parts of the criminal code that attempting a crime, as well as actually committing it, constitutes a crime in itself. Given that we all agree on the seriousness of the offences concerning people trafficking, we think that it is worth while to make this addition to the Bill.

I suspect that we all know from constituency cases—if not, we have all read about it—that it is common for people who do not get into Britain the first time to try again in later years. Around the world, Britain’s borders have a reputation for being porous and it is thought to be relatively easy to get into this country. That acts as encouragement. Any steps that we can take in the Bill to create countervailing factors that will discourage people from making multiple attempts to get into this country are worth doing, not least because we all know that many of the illegal people here—probably about three quarters, which is the number we all work on, although the Minister can correct me—have been trafficked. Therefore, there is a large criminal business behind this sphere of activity. Anything that we can do—not only to send signals but to take practical effects—to minimise that would benefit not just us but many of the victims of people trafficking.

At the moment the traffickers will get away if the attempt is unsuccessful. Clearly that is wrong and we should try to stop them. Indeed, in other parts of the Bill the Government are taking welcome measures to reduce the attractiveness of people trafficking, which is the fastest growing global crime; it is up there with gun-running and drug-running, and is growing faster than either of them. I support Government measures to crack down, and here is one more thing that would be useful, another tool in the armoury. Therefore, I hope that the Government will look with some sympathy on the amendment.

Joan Ryan (Labour, Enfield North)

I thank the hon. Gentleman for his support over facilitation and trafficking. I am conscious of the support that the whole House affords on the proposed measures and of its concern about such horrendous crimes. This clause and clauses 26 and 27, which we will go on to debate, deal with facilitation of illegal migrants and asylum seekers. The hon. Member for Ashford is right that three quarters of illegal immigration is estimated to be facilitated by organised crime gangs or by individuals seeking to profit from this misery. This clause and clause 26 deal specifically with people smuggling, which is the facilitation of illegal immigration for profit, normally of individuals, who have sought the help of or have paid facilitators to assist them to migrate. That is different from human trafficking, which involves the facilitation of illegal migrants, including those who have been coerced or duped with the purpose of exploiting them, often as prostitutes or cheap labour; we will have the opportunity to discuss that subject when we debate clause 27. What both activities have in common is that victims of this trade are seen merely as commodities. I need not remind the Committee of such tragic and high-profile incidents as those of the Morecambe bay cockle pickers or the group found in the refrigerated lorry at Dover, because they have already been mentioned.

The clause aims to protect vulnerable people by strengthening existing facilitation offences. Section 25A of the Immigration Act 1971 makes knowingly and for gain assisting the arrival in the United Kingdom of an asylum seeker an offence. Clause 25 will extend that offence to ensure that all acts facilitating either the arrival in or entry to the United Kingdom are covered by the offence. A person is said to have arrived in the United Kingdom upon disembarkation. That is distinct from his or her entry into the United Kingdom, which takes place at border control. At some ports there can be a considerable distance between. I am thinking that, after stepping off the plane at Heathrow, it can be some time and distance before one gets to the point where one meets the immigration officer and has one’s passport checked. That physical and legal gap is exploited by facilitators, who use the opportunity to carry out acts such as the destruction or disposal of false passports. Even though such acts are often captured on CCTV or witnessed by surveillance officers, they cannot currently be taken into account as evidence of facilitation because they have occurred after a person has disembarked or arrived.

Front-line staff at ports are very frustrated by the difficulty in securing convictions against facilitators. Last year, 42 convictions were secured by immigration officers, but they estimate that 30 per cent. of those suspected of facilitating go unpunished because of that gap. I am sure we all agree that it is right that we should empower immigration officers to tackle this problem.

I can reassure the Committee that, as a matter of policy, only immigration officers who are trained in arrest and criminal investigation matters are able to take forward prosecutions. They are also bound by the provisions of the Police and Criminal Evidence Act 1984 and the relevant codes of practice.

I appreciate the intention behind the amendment and we want to enhance our ability to tackle people smuggling and reduce the harm that it causes to victims and the wider public. We agree that we need to ensure that acts of attempted facilitation are also punishable, as well as those that are successful. However, that mischief is already addressed by legislation and case law. Section 31(3) of the 1971 Act defines an entrant as someone entering or seeking to enter the UK. That definition has the effect of establishing that attempted entry is equivalent to actual entry, for the purposes of dealing with the relevant offence.

That interpretation has been adopted by the courts and is demonstrated in case law in this area. Furthermore, section 1(1) of the Criminal Attempts Act 1981 provides that, in the majority of cases where an offence is triable either way, it is an offence to attempt to commit an offence. The facilitation offences fall into that category. Therefore, as long as an individual undertakes actions that would lead to the commission of an offence of facilitation, he or she will be guilty of an offence of attempted facilitation.

An individual convicted of attempting to facilitate another’s arrival or entry into the UK would face the same maximum penalty as if the facilitated arrival or entry had been successful, that penalty being a fine and/or imprisonment of a maximum of six months on summary conviction, or a fine and/or imprisonment of 14 years on conviction on indictment.

It is for those reasons that the proposed amendment is unnecessary, but I very much welcome the support of the hon. Member for Ashford for the clause.

Damian Green (Conservative, Ashford)

I am grateful to the Under-Secretary for her full explanation, in light of which I beg to ask leave to withdraw the amendment.

Clause 26

Damian Green (Conservative, Ashford)

I rise not in any way to cast doubt on the clause, which is one of the more important extra powers that the Government are rightly taking in an attempt to stamp out people trafficking. I just wonder whether the Under-Secretary could give some explanation of the practicalities of applying these powers extraterritorially. Presumably, she is seeking to hunt down and prosecute people who may never set foot in this country. Although that is a laudable aim, I simply raise the question of how practical it will be and how much effect it will have on people who, as we have just been discussing, are some of the world’s most serious and hardened criminals.

I should be grateful if, during the debate on the clause, the Under-Secretary would give us some flavour of what is going to change, what will happen and what new activity will take place that will hopefully have the effect of hunting down, prosecuting and convicting some of the world’s most unpleasant criminals.

Joan Ryan (Labour, Enfield North)

I have already set out for the Committee the challenge that we face from those who seek to profit from the misery of those seeking to migrate illegally. As we have heard, people smugglers do not respect international boundaries or immigration laws and they will seek to exploit any gaps and vulnerabilities. The clause seeks to amend the existing facilitation offences to ensure that those who carry out acts of facilitation, whether those acts are committed within or outsidethe UK, can be prosecuted, irrespective of their nationality.

Currently, these offences cover only acts of facilitation committed within the United Kingdom. Unless a perpetrator overseas is a British national or a body incorporated in the UK, they are not encompassed within the scope of the offences. We know that people carry out acts of facilitation outside the UK, for example by planning a route, making transportation arrangements, purchasing tickets and false documents or assisting people in deceiving carriers at check-in. Many are responsible for multiple attempts on the border, and it is simply unacceptable that those who engage in such activity abroad can be held accountable for their actions only if they are British nationals. That is why we have acted to remedy that unfairness.

The purpose of the clause, then, is to extend the scope of the offences by removing the existing limitations on their extraterritorial applications so that they cover acts of facilitation directed at the United Kingdom wherever in the world they are committed and regardless of the nationality of the perpetrator. That will ensure that immigration officers are fully able to tackle individuals who exploit vulnerable people. Because of this clause and clause 25, immigration officers estimate that successful prosecutions against facilitators will increase by up to 50 per cent. In addition, the extended territorial scope of the offence will act as a significant deterrent to those who involve themselves in such criminal activity.

Damian Green (Conservative, Ashford)

Will the Under-Secretary give way?

Joan Ryan (Labour, Enfield North)

To assist the hon. Gentleman, perhaps I can give him a scenario so that he can see how we envisage the system operating.

Damian Green (Conservative, Ashford)

I am grateful to the Under-Secretary for giving way. The prediction of a 50 per cent. increase in prosecutions is heartening. Can she give us some sense of the scale of that—it will be 50 per cent. more than how many? How many prosecutions can we expect—tens, dozens, hundreds?

Joan Ryan (Labour, Enfield North)

As we discussed under the previous clause, there were in fact 42 convictions last year, so that shows the scale of what we are dealing with. We shall seek to increase that. As the hon. Gentleman says, this is one of the fastest growing areas of global organised crime, if not the fastest growing. We hope that the powers that we are taking and the ability to so extend our reach will make a big difference—a 50 per cent. increase in convictions. The figure of 42 is for last year, and we want the level of convictions to be much higher in future.

I shall give an example of how the new powers might help by giving the hon. Gentleman a scenario. A Singaporean national seeks leave to enter the United Kingdom as a business visitor. The immigration officer is not satisfied with the stated reasons for the visit and thus decides to interview the passenger further. At the same time, a female passenger presents a Singaporean passport to another immigration officer and is found to be an imposter. Evidence is obtained showing that the female imposter and the male Singaporean national have arrived on the same flight and hold consecutive tickets. Checks confirm that the passengers have a joint booking and that the tickets were paid for using a credit card in the name of the male Singaporean national. Airline staff in Singapore confirm that the passengers checked in together and claimed to be newly-weds. They were allocated adjoining seats and checked in their luggage under the same name.

The Singaporean male did an act to facilitate the arrival of the female imposter, but he could not currently be charged with facilitation as all the above acts took place abroad and he is not within our jurisdiction as a non-British national. Under the new legislation, we would for the first time be able to take account of those acts of facilitation in making a case against that person. In the past we have only been able to do that in respect of British nationals.

I also draw the hon. Gentleman’s attention to the use of extradition in relation to these measures. With that, I ask the Committee to support the clause.

Clause 27

Damian Green (Conservative, Ashford)

I beg to move amendment No. 98, in clause 27, page 14, line 8, at end add—

‘(5) In section 57(2)(a) of the Sexual Offences Act 2003 (c. 42) for “6 months” substitute “51 weeks”.

(6) In section 59(2)(a) of that Act for “6 months” substitute “51 weeks”.’.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss the following amendments: No. 99, in clause 27, page 14, line 8, at end add—

‘(5) Where a person is guilty of an offence under sections 57 to 59 of the Sexual Offences Act 2003 (c. 42) or section 4 of the Asylum and Immigration (Treatment of Claimants, etc.)Act 2004 (c. 19) the provisions of section 28 shall apply.’.

No. 100, in clause 28, page 14, line 16, at end insert

‘or is guilty of an offence under sections 57 to 59 of the Sexual Offences Act 2003 (c. 42) or section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19).’.

Damian Green (Conservative, Ashford)

The purpose of these amendments is to amend the Sexual Offences Act 2003 to increase the penalties for some offences relating to trafficking specifically for the purposes of sexual exploitation. In our most recent debates we have discussed the extent and the seriousness of all people trafficking. One of the particularly unpleasant subsets of people trafficking is trafficking for the purposes of sexual exploitation. What we seek to achieve with these amendments is to send an even clearer signal than we are sending atthe moment of how much we deplore this particular trade.

We are pleased on these Benches that the Government now agree with us. They have signalled their intention to sign the European convention against trafficking and I can only reiterate what I said in previous debates—that signing the convention and increasing penalties for this crime are an important step forward. They enable the House to send a very clear signal that this type of crime needs to be hit hard now, at the point when it is growing so much. Without this type of measure and without both effective policing and stern sentencing it is likely to grow.

It is one of the inexorable side effects of increasing globalisation and of people’s increasing ability to move about the globe, and in particular to move from relatively poor countries to relatively rich countries, that opportunities open up for criminals as well. One opportunity that we know they are exploiting hugely is the ability to traffic young women and girls for sexual purposes. One of the most terrifying and vivid statistics I have seen is that five years ago 15 per cent. of prostitutes working in Britain were foreign-born; the figure now is 85 per cent., so only 15 per cent. are British-born. There has been a complete reversal in a very small number of years in that particular unfortunate group. That shows the extent of the increased criminality and why it is so important to act against it.

Amendment No. 99 would subject all those found guilty of trafficking people for sexual exploitation to the risk of automatic deportation. Amendment No. 100 is consequential and in effect puts the words of amendment No. 99 into clause 28. We are therefore seeking to increase the penalties for people trafficking for this particular purpose.

The Committee has already debated the appropriate length of sentence before a person is eligible for automatic deportation. That is a very important debate to be had about this Bill. What we are seeking to do with these amendments is to add this peculiarly unpleasant offence to those provisions. It seems to us that one of the most effective signals we can send—because it is practical, not just sending a signal—is that if a person has committed a serious immigration offence, which this kind of trafficking certainly is, then it is reasonable for this country to withdraw its hospitality from that person and add them to the group of people who can be automatically deported.

The purpose of these amendments is simply to encourage the Government to move in a direction that I know they want to move in anyway. It seeks to toughen the Bill. It seeks to make these important provisions even more rigorous and robust. I therefore commend them to the Committee.

Joan Ryan (Labour, Enfield North)

We made it clear in the IND report, “Fair, effective, transparent and trusted: Rebuilding confidence in our immigration system” that we are committed to working with overseas partners to tackle the challenges of global migration, which includes implementing measures to tackle cross-border crime. In that regard, we have ratified two important United Nations protocols: the protocol against the smuggling of migrants by land, sea and air, and the protocol to prevent, suppress and punish trafficking in persons, both of which came into force on 11 March 2006. In addition, our intention to sign the Council of Europe convention on action against trafficking in human beings, to which the hon. Member for Ashford referred, was signalled by the Prime Minister on 22 January. It will build on our strategy to combat human trafficking by providing minimum standards of protection and victim support.

We have always said that we are wholly sympathetic to the objectives behind the Council of Europe convention, which will provide greater support for all victims of trafficking and support the fight against organised immigration crime. We did not want to sign the convention until we had fully assessed the risk associated with the provisions and how we might implement them safely while maintaining effective immigration control. Signing the convention now means that its implementation can be monitored under the UK action plan on human trafficking, which we will publish in the next few months.

We have already done good work to develop an effective enforcement response to this horrendous crime. Last year, we established the UK Human Trafficking Centre, which will become a central point for the development of police expertise and operational co-operation. We continue to support adult victimsof human trafficking through an investment of£2.4 million in the Poppy project. The scheme provides safe shelter and support to assist in the recovery of adult female victims who have been trafficked into the UK for sexual exploitation.

As we have already discussed, trafficking is almost always a form of organised crime and should be dealt with using criminal powers to investigate and prosecute offenders for trafficking and any other criminal activities in which they engage. The 2003 Act introduced wide-ranging offences for England, Wales and Northern Ireland, covering trafficking into, within or out of the UK for sexual exploitation. A further, UK-wide, offence of trafficking for exploitation, which includes trafficking for forced labour and the removal of organs, was introduced by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Those offences carry a heavy maximum penalty of 14 years imprisonment on conviction on indictment.

In broad terms, the existing trafficking provisions make it an offence to facilitate arrival in, travel within and departure from the UK of a person whom the facilitator intends to exploit or whom they believe to be likely to be exploited. The offences currently cover acts of facilitation that are committed within the UK and, where the perpetrator is a British national, such acts that are committed outside the UK. The clause will enhance the existing trafficking offences to ensure that they cover acts committed after a person has disembarked but before they have arrived in, or been granted entry to, the UK. That will catch those traffickers who operate within the secure area of our ports, as we discussed during our consideration of the facilitation clauses. The clause will also extend the extraterritorial scope of trafficking offences to cover acts of facilitation that are carried out overseas, irrespective of the nationality of the perpetrator. The clause applies the same extension of scope to trafficking as we have agreed to apply to facilitation.

I should like to bring to the attention of the Committee an amendment that we have tabled in respect of the application of the provisions to Scotland. To the extent that they relate to devolved matters, it is for the Scottish Executive and the Scottish Parliament to decide what approach to take.

Following the introduction of the Bill it was noticed that subsections (1) and (2), which amend the Asylum and Immigration (Treatment of Claimants, etc.)Act 2004, relate to devolved matters in so far as they apply to Scotland. Subsections (3) and (4), which make similar amendments to trafficking offences in the2003 Act, do not apply to Scotland as the provisions of that Act do not extend to Scotland. The application of subsections (1) and (2) to Scotland in the introduction was an oversight and we will remedy it by tabling an amendment to limit the extent of the provisions to England, Wales and Northern Ireland.

Damian Green (Conservative, Ashford)

I am just pondering on whether the Minister has considered the alternative prospect of trying to persuade the Scottish Executive to play ball this time and to go along with the Government’s policy, which they so signally—and embarrassingly for the Government—failed to do in the first part of the Bill.

Joan Ryan (Labour, Enfield North)

It is important to emphasise to the hon. Gentleman and to the Committee that the UK Government and the Scottish Executive are united in their condemnation of those individuals who seek to benefit from the exploitation of vulnerable persons by manipulative, coercive and violent means. The Scottish Executive and the Home Office worked together closely on the development of the UK action plan to tackle human trafficking.

The Scottish Executive is considering whether similar amendments could be made to the 2004 Act offence as it applies in Scots law and to similar offences such as section 22 of the Criminal Justice (Scotland) Act 2003 and sections 9 and 12 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005. The hon. Gentleman will know that the forthcoming elections in Scotland make it difficult to introduce appropriate measures at this time.

David Davies (Conservative, Monmouth)

Will the Under-Secretary tell us why the forthcoming elections should have an impact on the ability of the Scottish Government to introduce important measures? Does she think that there will be a change in the people who make up the Scottish Parliament after the elections?

Joan Ryan (Labour, Enfield North)

I am sure the hon. Gentleman has a grasp of the concept of time, although we would not know it from his last remark.

David Davies (Conservative, Monmouth)

I am afraid that one went over my head. [Interruption.]

Sir David Amess (Conservative, Southend West)

Order.

Joan Ryan (Labour, Enfield North)

I am not sure whether the hon. Gentleman, speaking from a sedentary position, was inviting me to speculate on what goes over his head and what does not, but I do have a concept of time and must move on.

The amendments relate to a very serious topic on which there is some consensus, but we need to discuss the detail of the proposal. Amendment No. 98 would increase the sentence available to the magistrates court from six months to 12 months. The offences in sections 57 and 59 of the 2003 Act are triable either way and like all such offences will be amended when custody plus commences to allow magistrates to impose sentences of imprisonment up to 12 months.

It would be wholly inappropriate for the Bill to purport to allow magistrates courts a higher level of sentencing for these offences than is within their jurisdiction, but I take note of the substance and the content of the amendment. If magistrates courts hear cases that they think are too serious to be punished adequately, they should commit them to the Crown court, where the full maximum penalty of 14 years imprisonment will be available. That would be a way forward.

On amendments Nos. 99 and 100, which refer to the automatic deportation of prisoners convicted of trafficking offences, there will be three ways in which a person can be deported on conviction of one of those offences.If he is sentenced to a period of imprisonment of12 months or more, the automatic deportation provisions will apply. If the automatic provisions do not apply, he can still be considered under existing deportation arrangements, either on conducive grounds or as a result of a court recommendation for deportation. Moreover, sections 57 and 58 of the 2003 Act are included in the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004, known as section 72. If a foreign criminal is imprisoned for those offences, the automatic deportation provisions will apply.

I hope that that gives the hon. Member for Ashford sufficient reassurance on the important points that arise from his amendment, and that he will feel able to withdraw it.

Damian Green (Conservative, Ashford)

I congratulate the Under-Secretary on two things. The first is her entirely realistic assessment of the Labour party’s chances in the forthcoming Scottish elections—she hinted that the Government feel that they might be dealing with a different flavour of Administration there.

Joan Ryan (Labour, Enfield North)

Not at all.

Damian Green (Conservative, Ashford)

Secondly, I congratulate her on her full and fair explanation of the purpose behind the clause. I am grateful for her remarks about the constructive nature of the amendment, but I take her point and beg to ask leave to withdraw the amendment.

Damian Green (Conservative, Ashford)

I beg to move amendment No. 101, in clause 27, page 14, line 8, at end add—

‘(5) In section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) after subsection (5) add—

“(6) If there are reasonable grounds to believe that a person has been the victim of trafficking in human beings, that person shall not be removed from the UK until the process of identifying the person as a victim of an offence has been completed.

(7) If an unaccompanied child is identified as a victim of trafficking, the Secretary of State shall—

(a) provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interests of that child;

(b) take the necessary steps to establish the identity and nationality of the child;

(c) make every effort to locate the family of the child when the Secretary of State determines that this is in the best interests of the child.

(8) If an individual has been identified as a victim of trafficking the Secretary of State shall allow a recovery and reflection period of not less than 30 days. During this period it shall not be possible to enforce any expulsion order against that person. During this period, the Secretary of State shall authorise the persons concerned to stay in the UK.”’.

Damian Green (Conservative, Ashford)

We have been discussing the Council of Europe convention and the Under-Secretary will recognise chunks of it in the amendment, which I hope she will treat as a probing amendment. We simply seek to establish how soon we can sign up and ratify and therefore, more importantly, how soon those who are suffering trafficking into this country can look forward to the protections afforded by the convention.

As I have said, we welcome the fact that the Government have signalled their intention to sign up. If the amendment were agreed, it would insert into the Bill key elements of the convention. That would be a clear statement of intent. The fact that this Bill is before the House at the moment should enable us to enjoy the benefits of signing up to the convention more speedily than might otherwise be the case, as it could be used as a vehicle through which we can do so. Many other European countries have already signed up. I hope that the Under-Secretary will regard the amendment as a gentle and friendly push in a direction in which she wants to move anyway. I shall be interested to know the Government’s proposed time scale for moving from their very welcome declaration of intent to sign up to the convention, to action.

Joan Ryan (Labour, Enfield North)

I thank the hon. Gentleman for his probing amendments and for his approach on these matters. It would send entirely the wrong message if we could not reach agreement on issues such as this, and I am heartened that we are able to do so. I can tell him that we seek to sign very shortly, but I cannot give him an exact date. Of course, upon signing, we will be able to implement the convention. He is right that his amendment provides for some key measures from the convention, but we could probably implement those sooner by signing the convention than by waiting for the Bill to be enacted, although, of course, we can implement some of those measures without legislation or the convention.

To assist the Committee, I shall provide some information about measures that we have taken already and comment on the hon. Gentleman’s amendments. On proposed new subsection (6) to section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, we have provided staff with guidance for identifying victims of trafficking at the earliest possible stage. The Home Office has developed an online tool kit aimed at practitioners to increase awareness of trafficking and to provide training on identifying and handling potential victims. That is being provided for all regional enforcement officers.

On reaching a decision to pursue repatriation of an individual, consideration is given to our obligations under immigration laws and the Human RightsAct 1998, including any risk that those individuals face on return and humanitarian or other reasons for allowing them to remain in the United Kingdom. On proposed subsection (7) to section 4 of the 2004 Act, when the IND encounters children and identifies child protection concerns, they are referred to local authority children’s services, in line with the IND’s existing procedures.

Any child aged 17 or less, in the UK, who cannot be cared for by a parent or established care giver must be accommodated by a local authority children’s services department. Those departments are charged with the responsibility for the care and well-being of children in the UK, as set out in the 2004 Act, and reinforced by statutory guidance subject to independent inspection. The support is mandatory, regardless of immigration status, and is automatically given to any children granted refugee or subsidiary status. To support the identification of children in need, the immigration service has also provided specialist training to about 600 operational members of staff in the United Kingdom. The message that children arriving in the UK might be here as a result of coercion or criminal activity, including trafficking, is central.

As we have always said, we are wholly sympathetic to the objectives of the Council of Europe convention, which will provide greater support for all victims of trafficking and support the fight against organised immigration crime. The convention will build on our strategy to combat human trafficking by providing minimum standards of protection and victim support. As I have outlined already, we have done some very good work to develop an effective enforcement response and last year we established the UK Human Trafficking Centre.

The convention provides the framework for victim provision to be enhanced for victims of sexual exploitation and to be created for victims of forced labour. That will also improve the effectiveness of our enforcement strategy. The measures in the hon. Gentleman’s amendment are extremely important. As he said, two of them are taken from the convention, which we will sign and implement as soon as possible. As I have said, however, we have already taken some significant measures to afford protection and care to victims of trafficking.

Damian Green (Conservative, Ashford)

I am grateful for the Under-Secretary’s explanation. As she said, there is absolutely no division between the two sides of the House over this very important convention. I am delighted to hear her say that the Government will proceed to action very shortly—that is the phrase that she used. We await that eagerly. I beg to ask leave to withdraw the amendment.

Clause 28

James Clappison (Conservative, Hertsmere)

I beg to move amendment No. 58,in clause 28, page 14, line 14, leave out ‘1 or 2’ and insert ‘1, 2 or 3’.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss the following amendments: No. 7, in clause 28, page 14, line 15, leave out ‘a’ and insert ‘any’.

No. 134, in clause 28, page 14, line 15, leave out from ‘imprisonment’ to end of line 16 and insert

‘has committed an offence which, in the opinion of the sentencing judge, merits deportation.’.

No. 8, in clause 28, page 14, line 15, leave out ‘of at least 12 months’.

No. 59, in clause 28, page 14, line 21, at end insert—

‘(3A) Condition 3 is that the person is convicted of an offence liable to imprisonment, the commission of which took place when the person did not have valid leave to remain in the United Kingdom.’.

No. 127, in clause 28, page 14, line 32, at end add—

‘(8) The Secretary of State shall lay before Parliament an annual report on the operation of the provisions under this section including the number of people deported under them.’.

No. 142, in clause 34, page 17, line 26, leave out subsection (1).

No. 13, in clause 34, page 17, line 28, leave out ‘does not include’ and insert ‘includes’.

No. 55, in clause 34, page 17, line 29, leave out ‘whether or not’ and insert ‘save where’.

No. 143, in clause 34, page 17, line 31, leave out paragraph (b).

No. 14, in clause 34, page 17, line 31, leave out ‘does not include’ and insert ‘includes’.

No. 15, in clause 34, page 17, line 38, leave out ‘at least 12 months’ and insert ‘any length of time’.

No. 16, in clause 34, page 17, line 41, leave out ‘(provided that it may last for 12 months)’.

No. 17, in clause 35, page 18, line 21, leave out from ‘(i)’ to end of line 23 and insert

‘for “does not include” substitute “does include”.’.

No. 18, in clause 35, page 18, line 24, leave out subsection (3).

New clause 5—Annual report by Secretary of State—

‘Following consultation with Her Majesty’s Judges, the Secretary of State shall lay before each House of Parliament an annual report on the exercise of his powers in respect of the deportation of criminals.’.

James Clappison (Conservative, Hertsmere)

I shall be speaking to the amendments standing in my name and shall also say a few words about the amendments in the name of my hon. Friend the Member for Monmouth.

We now come to the subject of automatic deportation, as it is termed by the Government. Briefly, to assist the Committee, as the Bill stands, what is described as automatic deportation will generally be triggered when a foreign offender receives a sentence of at least12 months imprisonment. There are other circumstances in which it may be triggered under the clause, when an offence is specified under condition 2, but generallythe trigger mechanism is a sentence of 12 months imprisonment. My amendments are refinements on that, as are the amendments tabled by my hon. Friend. That is the starting point for the debate.

I should say, so as to give the Committee a complete picture, that in the case of sentences of less than 12 months imprisonment or of non-custodial sentences the existing law on deportation remains in place. As I understand it—the Minister will correct me if I am wrong—someone who does not set off or come within the ambit of the trigger mechanism of 12 months imprisonment may still be recommended for deportation by a court; or the Home Secretary may decide to deport the person concerned on the grounds that his or her presence in the United Kingdom is not conducive to the public good, even if the court has made no recommendation. That is the existing law. The Bill adds to that the category of automatic deportation. That is the difference that the Bill makes.

Amendment No. 58 seeks an additional trigger mechanism in the case of a person who receives a sentence of imprisonment for an offence committed at a time of not having valid leave to be in the United Kingdom; that means, basically, somebody who is an illegal entrant or an overstayer in the United Kingdom and who does not have permission to be in the country. The Committee may remember that I specifically raised that question with Migrationwatch.

I have some sympathy with the amendments tabled by my hon. Friend the Member for Monmouth. He would trigger automatic deportation when a foreign offender receives any sentence of imprisonment, as opposed to what is on the face of the Bill, which is a sentence of 12 months imprisonment or one of the offences specially listed by the Home Secretary. I do not know what the Minister will reply, but whatever else he says, I do not think he will be able to say that my hon. Friend’s amendments are entirely unreasonable, because the Government had the same idea originally. The Committee will remember that there is quite a history as far as the provisions are concerned, from the early part of last year—the Minister winces at that recollection. I do not propose to go over the whole of that history; I will save the Committee that, but I think it highly relevant to the amendment to remember what the then Home Secretary originally said to the House when dealing with the aftermath of the problems—if I may put it that way—over foreign deportations:

“We will consult on whether that presumption should be made statutory through primary legislation”—

he was referring to the presumption that deportation would follow, unless there were “special circumstances” where it could not.

“Such a presumption would include all criminals sentenced to imprisonment, all those convicted for an offence listed in an order under section 72 of the Nationality, Immigration and Asylum Act 2002, all those on the sex offenders register, repeat offenders and, of course, all those recommended for deportation by the sentencing judge. We believe that there is a strong case for extending those proposals to any individual who is convictedof an imprisonable offence, whether or not a sentence of imprisonment was actually given, and we will consult on that too.”—[Official Report, 3 May 2006; Vol. 445, c. 972.]

David Davies (Conservative, Monmouth)

I am grateful to my hon. Friend for giving way and for enlightening us in that manner. Is it not the case, therefore, that the original proposals put forward by the Government were far less moderate than the proposals that I am putting forward today?

James Clappison (Conservative, Hertsmere)

My hon. Friend is correct. However, that was not the final version of the Government’s thinking. To be fair, they moved on from the position of all imprisonable offences committed by a foreign offender resulting in a presumption of deportation, which was going to be put into statute and presumably was what they were thinking of at the time.

We then moved to the present Home Secretary, whose own proposals in this regard, which he described to the House in a written statement, seem to be on all fours with those in my hon. Friend’s amendment. I shall quote what he said in that statement:

“I believe it is essential to be clear about our long-term policy. My objectives are straightforward: all non-EEA nationals who are given a custodial sentence should face deportation; and deportation should happen as early as possible in that sentence.”—[Official Report, 23 May 2006; Vol. 446, c. 79W.]

There is not much room for doubt there as to what the present Home Secretary wanted. He wanted what I think appears in the form of my hon. Friend’s amendment. So it would be interesting to hear from the Minister what has prompted the shift in the Government’s thinking: away from the Home Secretary’s predecessor, who wanted imprisonable offences to result in automatic deportation; to the present Home Secretary, who wanted all sentences of imprisonment to result in automatic deportation, and finally to this measure, which sets the trigger for automatic deportation at 12 months’ imprisonment.

It is quite natural to ask why the Government have engaged on this retreat. The public will want to know and I think that it is a fair question to put: why should foreign nationals who have abused their position in the UK by committing serious offences for which only a custodial sentence is appropriate be allowed to stay in this country? It might be the case that the Home Secretary and his predecessor were thinking similar thoughts when they made their proposals.

I would also like to point out that, if the Bill is amended to make the trigger mechanism a sentence of imprisonment rather than 12 months imprisonment, it appears to be the case that all the protections afforded to an offender in the Bill would remain. There are quite a lot of them. I have noted that there are a large number of exceptions, some of them in the form of protections for an offender, particularly in respect of offenders who are claiming asylum. There is also the full range of protections for a foreign offender under the European convention on human rights, including article 8, the right to family life. All those protections are in the Bill and they would apply as much to somebody who is sentenced to imprisonment following an offence as they would to somebody receiving12 months imprisonment. All those protections are in place, so I would like to hear from the Minister why he wants to give additional protections to someone who receives a sentence of imprisonment of less than12 months.

I turn to my amendments. Amendments Nos. 58 and 59 cover a slightly different case: the case of a person without leave to remain in this country who commits an offence. If I may, I pray in aid the support of Migrationwatch, because I asked it specifically about that issue. We heard a lot about Migrationwatch this morning; I think that the Minister was quoting Migrationwatch left, right and centre, if I can put it that way, and it was an unshakeable authority for the propositions that the Minister wanted to advance. What Migrationwatch had to say about the point that I put to it in support of amendment No. 58 was absolutely clear. It clearly thought that it was right that somebody in the country without permission to be here who offended and received a sentence of imprisonment should be asked to leave the country, and deported.

The case of somebody who commits an offence without having permission to be in the country is different from that of somebody who does have that permission, not least because, as the Minister will confirm, that person is liable for removal whether or not they have committed an offence. They will be subject to administrative removal rather than deportation, but it has the same effect—they are removed from the country. I know that the Government are interested in removing such people, because they produced a paper about it two weeks ago with great fanfare. It explained how they would crack down on people who were illegally in the country by way of overstaying or whatever.

There is an important difference there, and in the light of that I hope that the Government will welcome the amendment. Somebody who is illegally in the UK, commits an offence and is arrested, charged, convicted and sentenced to imprisonment should automatically be deported, subject to the exceptions and protections in the Bill. My amendment would ensure that all offenders who commit an offence resulting in imprisonment and do not have leave to be in the country are deported.

As I said, such people are liable for deportation in any case. Are we to say that somebody who goes through the process of being arrested, charged, tried, convicted and sentenced to imprisonment should be released from prison to continue their illegal presence in the country and perhaps, who knows, to be texted a fortnight later to be told they should not be in the country? Perhaps great efforts would have to be made on the part of the IND to locate exactly where they were once they had left prison so that they could be removed from the country. Members of the public would want to know why such a person was not removed from the country as a result of their sentence of imprisonment as night follows day, subject to the exceptions in the Bill.

I turn to amendment No. 55 and I shall also make a few remarks about amendments Nos. 14 to 18, which stand in the name of my hon. Friend the Member for Monmouth. The amendments are on a separate issue. I have said that the trigger for automatic deportation will be 12 months imprisonment, but there is an issue of exactly what that means for that purpose. Under the interpretation in clause 34(1), it seems to me that a considerable number of offenders who receive a sentence of more than 12 months will not be subject to automatic deportation because of the meaning that the Bill gives to such a sentence.

I shall explain why 12 months will not mean12 months in a number of cases. The Bill prevents consecutive sentences totalling more than that from being counted as a 12-month sentence. So for example—the Minister can correct me if I am wrong—someone who offends on separate occasions and receives a series of two or more consecutive sentences in a single court appearance totalling more than 12 months will not be subject to automatic deportation, because he has not received a single sentence of 12 months. Under the Bill, however long the consecutive sentences are and whatever their total, as long as each individual sentence is less than 12 months such an offender will not automatically be deported.

I shall give one or two examples. A foreign national who commits two or three offences of burglary and receives nine months to be served consecutively for each offence—that is how the courts are told to sentence people who commit offences on different occasions—could be sentenced to a total of 18 or 27 months’ imprisonment and not be subject to automatic deportation. There is a problem with repeat offences, and the interpretation in clause 34 can be described only as a concession to serial offenders. My question to the Minister is why the Government are making that concession. Why are they showing generosity to people who repeatedly commit offences? It is not just a single offence. They are committing repeated offences and violating this country’s hospitality. Why cannot they be subject to automatic deportation if their sentences total more than 12 months?

Amendment No. 55 covers a similar point. As the Bill stands, it could give rise to another case in which 12 months imprisonment will not necessarily result in automatic deportation. I am talking about offenders not being deported despite being sentenced to a total of more than 12 months imprisonment for separate offences in a single court appearance. AmendmentNo. 55 covers a slightly different point, too, although it is on the same lines, because under the Bill as drafted—the Minister will correct me if I am wrong—a suspended sentence is not taken into account even where the foreign national commits a further offence and the sentence is activated to run alongside a sentence for a new offence.

A foreign offender who commits an offence and receives a suspended sentence of 12 months imprisonment will not automatically be deported, and if during the period of his suspended sentence of imprisonment he commits a further offence and receives a further sentence of imprisonment, he will not be subject to automatic deportation unless the second sentence is itself more than 12 months imprisonment. He will not be automatically deported even if the suspended sentence is implemented consecutively so as to make a total sentence of12 months. Thus an offender who receives a sentence of 12 months imprisonment suspended for two years is not automatically deported.

Let us suppose that that offender commits a further offence within that two-year period for which he receives a sentence of nine months imprisonment in a separate court appearance. If he is sentenced to21 months imprisonment in which the 12-month suspended sentence is activated consecutively to the nine-month sentence of imprisonment, which is how courts regularly sentence people who are subject to these provisions—they are probably told to do so—he will not be subject to automatic deportation, even though he is a repeat offender. In his case, not only is he a repeated offender, but he has repeatedly appeared in front of the courts and taken no notice when they have told him, in no uncertain terms, that he will be sent to prison if he commits a further offence during the period of his suspended sentence.

The proposal is another concession for serial offenders which is capable of producing perverse results, and the public, if they heard about it, might well regard it as a loophole. I can easily envisage a scenario in which a foreign citizen receives sentences of more than 12 months in one of the ways that I described and in accordance with court sentencing practice he is not automatically deported and goes on to commit further, serious offences. The question would be asked why the person concerned, having received a sentence of more than 12 months imprisonment, was not deported in the first place, and the answer would be that Parliament left a loophole.

The amendment provides us with a chance to ensure that we do not leave a loophole, that we bring some coherence to the Government’s provisions and that we send a clear message to people that they should behave themselves in this country, especially if they are here illegally.

Chris Mole (Labour, Ipswich)

I appreciate the hon. Gentleman’s point about what he described as a loophole but I am sure he realises that there is a back-stop in section 3 of the Immigration Act 1971 that allows the individuals he described to be considered for deportation by the Secretary of State.

James Clappison (Conservative, Hertsmere)

I am grateful for the hon. Gentleman’s intervention. I said that the public might regard it as a loophole. As I am sure that he will recollect that, at the beginning of my speech in support of the amendments, I mentioned that the Bill is in addition to the provisions in existing legislation. The court recommended the deportation of offenders or a separate power for the Home Secretary to deport someone whose presence in the country is not conducive to the public good. Those provisions were in place in the spring of last year when we experienced all those problems.

The provisions are subject to a legal mechanism and a series of appeals. The proposals before us are the outcome of the Government’s attempts to improve the situation in the light of last spring. It is the case that the sort of person who I described might be deported, but as we found out last spring, that is not always the case. Let us imagine that the public found out that such a person, having not come under the provisions of the Bill, had committed more serious offences, having already received more than 12 months in prison, but not been automatically deported. I can picture in my mind’s eye the television reporters on the steps of the court saying that because of a loophole, X, Y or Z was able to remain in the country, even though theyhad been sentenced to more than 12 months’ imprisonment. The Committee has the chance to say, “We have seen the loophole so let us close it”.

John Hemming (Liberal Democrat, Birmingham, Yardley)

This is a complex area, with which the Bill tries to deal with too few words, unless discretion is given to the courts. A lot of different circumstances could arise. Reference has been made to EEA citizens, but the Bill refers only to British citizens. The legal position of EEA citizens with a legal right to be here is unclear. Furthermore, it is entirely unclear whether suspended sentences count as periods of imprisonment.

We face an odd situation. The clause provides for a simple process of automatic deportation when certain conditions are satisfied. Where else should that apply? What approach should we take? In a couple of words, we could specify whether any sentence of imprisonment, or one of a year or more, would be necessary. Alternatively, would it be best to leave that decision to the discretion of the judge who can consider all the issues on the hearing at first instance? In effect, the judge could apply a number of sanctions: fines, imprisonment—suspended or otherwise—or he could press the button for deportation, although, obviously, the Secretary of State would actually order the deportation. Under the previous system, the Secretary of State could consider deportation. The newer one says that it will ensue, unless the Secretary of State pulls back.

Let us consider the example of a repeat burglar, which was a good one. Clearly, we do not want such a person in this country: they have come in on a visitor’s visa and carried out burglaries. There is no reason for that person to remain in this country and, frankly, there is no reason to lock them up for three years and then deport them when we could lock them up for six months, save ourselves a lot of money and then deport them.

David Davies (Conservative, Monmouth)

A lot of people would say that that is not correct. The message needs to go out to fellow burglars from the country that that person came from that they cannot simply come here, commit burglaries, wait until they have been caught and then be given a free flight home with nothing lost. People who commit burglaries should be punished, which means that they should, indeed, spend several years in prison before deportation.

John Hemming (Liberal Democrat, Birmingham, Yardley)

I am not saying, “Come here, steal things and we will give you a free ticket back”. I gave the example of six months vis-Ã -vis two years. We must consider the extent to which we need to go beyond that. It is an issue to be considered, but not necessarily now by this Committee. Our amendment gives the judge the discretion to say in certain circumstances that are not covered by the automatic provisions or the list in the statutory instrument, “Let us put this person on the conveyor belt towards deportation. When he has completed his sentence, he will be deported.”

The point is that different people find themselves in very different circumstances, and that needs to be considered at the court of first instance. One of my constituents, who does happen to be a British citizen, was imprisoned for five years for dropping a cigarette. It is a complex case that has gone badly wrong, and we are hoping to take it to the Court of Appeal. However—

David Davies (Conservative, Monmouth)

I do not know whether it is entirely in order, but that is such an incredible example that I think that the hon. Gentleman should spell out in more detail how anybody can have been locked up for five years for dropping a cigarette.

John Hemming (Liberal Democrat, Birmingham, Yardley)

It happens that my constituent has mental health problems and he dropped the cigarette in his home, where his parents live. A fire ensued and it was deemed to be reckless arson. Let us look at the mens rea issue—the question of intent. Consider the offence of careless and reckless driving by somebody who has lived in the country for a number of years. They lean down inside their car to pick something up, and it happens to run into other people. They get a short period of imprisonment, not necessarily a year. Are we saying that, having lived here for 30 years, they should automatically be put on the conveyor belt for deportation? That is a very different sort of offence from that committed by somebody who goes around burgling lots of people, where there is identifiable intent to cause misery to others.

Consider also circumstances where somebody on a student visa goes out with other students, they get a bit drunk and do something rather stupid. That is not the same mens rea as the situation in which somebody commits repeat burglaries. That person would effectively have ended their studies because they went out and did whatever the other students happened to do at the time. We cannot try to deal with those circumstances using the form of words that we are considering here. There is, therefore, logic to giving the judge the discretion to decide in circumstances that do not already fall within condition 2 whether a particular sentence or conviction warrants deportation. Whether that is taken into account to any extent in terms of the period of sentencing—obviously, taxpayers have a concern about what is done in given circumstances—is a matter for Home Office guidance and further work.

We are proposing an alternative approach. In certain circumstances, it will be a lot firmer because it will involve a shorter sentence than a year—so the example of the repeat burglar would be trapped by that. However, in other circumstances, it will allow consideration of the circumstances of the individual. As I mentioned, people come here on student visas, and odd things can happen. It is a complex situation and I do not think that trying to deal with it simplistically deals with it properly in the long term. A good example is that of the lad in the Orkneys. Hon. Members might remember that there was a major campaign to prevent his deportation. It had a lot of public support. He was not deported. That related to an arson offence committed on a previous occasion.

There is a role for condition 2 and a statutory instrument determining a list of types of offence. However, wherever the number of months or years is set, there is going to be a problem. That problem is best resolved by giving discretion to the judge. I wish to press amendment No. 134 to a vote later.

David Davies (Conservative, Monmouth)

This country has a proud history of offering hospitality to people who have chosen to come here for different reasons, and it is right that that should continue. Unfortunately, while there have been many good examples of people coming here in large numbers and living constructive lives, there has been a tendency recently for some people from certain countries—I might give an example later—to come with the deliberate intention of breaking the law, in order to profit from doing so. My view, which may be shared by Labour Members and even Liberal Democrat Members, is that we should not have to tolerate that. There is a widespread view among all communities that if people come here and abuse our hospitality, any obligations that we have to them become null and void.

The purpose of my two amendments is to ensure that anyone who received a prison sentence would face automatic deportation as a result. Given what my hon. Friend the Member for Hertsmere has just said about the Government’s original proposals, they are very moderate amendments indeed. I probably ought to become the hero of the Guardian-reading classes for coming up with something that is eminently more moderate.

Liam Byrne (Labour, Birmingham, Hodge Hill)

Polly Toynbee.

David Davies (Conservative, Monmouth)

Indeed, Polly Toynbee will probably laud me in her column in T he Guardian next week, because what I have suggested is far more reasonable and liberal than what the Government proposed some time ago. They originally talked about automatic deportation for anyone who broke any rules whatsoever, but I am suggesting automatic deportation for anyone who is sentenced to any form of imprisonment. As we know, it is quite hard to get thrown into prison these days. One has to do something very serious indeed to earn any sort of prison sentence. I have heard a few examples. I have to say to the hon. Member for Birmingham, Yardley that the example of the cigarette end was a little bit misleading, if it resulted in arson in a house in which somebody was living.

John Hemming (Liberal Democrat, Birmingham, Yardley)

Let us understand a little about that case. The people who came to me to complain about the sentence were the other people living in that house, because they felt that it was wrong.

David Davies (Conservative, Monmouth)

I think that I would probably feel that it was wrong if somebody had put out a cigarette and started a fire in my house. I am not aware of the full situation that the hon. Gentleman is talking about. He was a bit misleading when he gave that as an example. He gave us a few other examples, though. He talked about the drunken student; I have never been a student, but I have been drunk a few times.

Chris Mole (Labour, Ipswich)

Shocking.

David Davies (Conservative, Monmouth)

Yes, it is shocking, isn’t it? In my teenage years I did one or two rather silly things. Let us put it this way: it did not involve dressing up in £1,000 tail-coats. Let us not go down this road; I can feel an imaginary shovel in my hands as I continue.

Let us be reasonable. People who are young—by that I mean under the age of 20, and even a little bit older—do silly things. I should think that most of the people in the Room have done silly things and I certainly include myself in that. One does not go to prison for doing one-off silly things, or for doing things as a drunken student.

John Hemming (Liberal Democrat, Birmingham, Yardley)

The question is: which rules, if contravened, should result in deportation? Students can do silly things that contravene the rules and get fined for it. We are talking about the wider issue of how far somebody goes before they get deported.

David Davies (Conservative, Monmouth)

It is clear from the amendment. We are talking not about people who get fined, but about people who get sentenced to any form of imprisonment. I purposely tabled the amendments so that they would not include people who get involved in a drunken prank while they are a student, or somebody else who shoplifts something. They would not face any form of imprisonment and therefore would not be automatically deported either. We have to draw the line somewhere. I have clearly referred to anyone who gets a sentence of imprisonment. It is quite difficult to get such a sentence. One has to do something quite serious to get it

John Hemming (Liberal Democrat, Birmingham, Yardley)

It comes back to the question of mens rea and intent. Do people intend to achieve the results that are achieved? I do not want to go through a list of offences or examples of people who have been imprisoned. I cited that example from my constituency because it involved somebody who happened to be mentally ill at the time. He dropped a cigarette and did not do anything about it. He pleaded guilty, which perhaps was also a mistake, but that is life. He has now got a problem. There are situations in which someone might get a short prison sentence. We have to look at the wider issue of where we set the limits on the rules.

David Davies (Conservative, Monmouth)

To be truthful, the problem with setting any limits on any rules is that there will always be cases that make the rules look a bit silly. The truth of the matter is that if the amendments are passed, there will occasionally be somebody deported who one might reasonably think should not be deported. That will happen, but rarely. The problem at present is that there are many thousands of people in this country who should be deported—I believe that Government Members would agree with that—but who are not.

I give one example. I was looking on the force computer a couple of weeks ago and learned that a gang of pickpockets from Chile is operating in tube stations. There are about a dozen in the gang. They are constantly being arrested, but every time one is arrested, everyone else clubs together to get them a solicitor and get them out of jail, whereupon they go straight back to the tube and carry on picking pockets. It is done in an organised fashion and the people who are involved are doing nicely out of it. They are never, or very rarely, sent to prison, which surprises me, but if they were sent to prison, they would not be sent for12 months, because one is not sent to prison for12 months for picking pockets.

I suspect that everyone in this room would agree that those people should automatically be deported. There is no reason why they should not be sent back to Chile or why we should enable them to stay here to pick pockets on the tube, yet they are not deported.

John Hemming (Liberal Democrat, Birmingham, Yardley)

I did not mention the last thing on my piece of paper, but the hon. Gentleman must have seen it. The point is that those people are clearly causing a continual public nuisance, but are not being imprisoned. Should not the judge be given the opportunity to say that the offence warrants deportation?

David Davies (Conservative, Monmouth)

I hear sounds behind me that indicate that another intervention may be coming my way. The hon. Gentleman makes a perfectly reasonable intervention, but my suggestion would also take care of the matter. The judge would have the power to sentence somebody for repeatedly picking pockets to at least several weeks, if not months, in prison.

James Clappison (Conservative, Hertsmere)

I understand the Liberal Democrat Member’s point, but is not the answer that neither my hon. Friend’s amendments, nor my amendments, nor the Bill itself will take away the existing power of the judge to recommend deportation if he thinks that it is appropriate—that is the discretion to which the hon. Gentleman refers—or for the Home Secretary, quite independently of what happens in the courts, to make an order that somebody’s presence is not conducive to the public good? The problem is that the procedures are so labyrinthine and subject to uncertainty and bureaucracy that we end up with the problems that we had last spring, but the powers remain in place.

David Davies (Conservative, Monmouth)

Before we start to go around in circles, I want to come back with one point about mens rea, which, as the hon. Member for Birmingham, Yardley knows, is all about intent. I shall not name the country this time, because I know that it will get me into trouble, but there is a problem in my force area with a certain community that is constantly breaking driving regulations. That has led to accidents, and people are driving around without tax, insurance, MOTs or anything else whatsoever.

The issue that concerns me is not simply that the driving rules are being flouted, but that people driving without licences are causing a danger to others. Should they be involved in an accident, imprisonment of more than 12 months is unlikely because there will not have been an intent to cause serious harm to somebody, although that might be what actually happens. I put it to the Committee that people who deliberately flout rules in a systematic fashion should not be made welcome in this country, and we should have no obligation to them, regardless of whether they do or do not intend to cause somebody a serious injury.

John Hemming (Liberal Democrat, Birmingham, Yardley)

On the power to recommend and consider, Liberal Democrats are simply suggesting that the court of first instance deal with the matter. That would mean that a system that does not currently work would actually start working.

David Davies (Conservative, Monmouth)

If the hon. Gentleman considers what I have suggested, he will find that it is very simple. Automatic deportation will be presumed if somebody is sentenced to any period of imprisonment. I do not see anything wrong in that, given the fact that people are not sent to prison unless they have done something fairly serious or are doing less serious things on a repeat basis. It is a perfectly reasonable amendment and far more reasonable than the ones put forward earlier by the Government. I offer it up as a third way. It is a moderate compromise that we can all get behind and support, and I put it to members of the Committee that they should do so.

Damian Green (Conservative, Ashford)

I rise to support the amendment of my hon. Friend the Member for Hertsmere, to speak to my own amendments and, as my hon. Friend did, to put this large group of amendments in the context of the debate of the past 15 months.

For a few minutes, the Committee appeared to agree that if a person is drunk when they commit a crime, it is somehow not as bad. That is simply not the case.

David Davies (Conservative, Monmouth)

At that point in the debate I was taken down a path down which I would rather not have been taken. I thank my hon. Friend for putting more eloquently than I did exactly the point that I was trying to make before I was rather cleverly distracted by hon. Members.

Damian Green (Conservative, Ashford)

I give way to the hon. Member for Birmingham, Yardley.

John Hemming (Liberal Democrat, Birmingham, Yardley)

What I was trying to get at is that we are looking at the wider issues. At what point is it appropriate to deport somebody?

Damian Green (Conservative, Ashford)

Exactly so. I am particularly grateful to the hon. Gentleman for clarifying his position.

I shall return to the debate. My hon. Friend the Member for Hertsmere carried out an extremely good forensic examination of the way in which the Government’s position on deportation has oscillated, not just from Home Secretary to Home Secretary, but between the existing one and the legislation before us. However, I seek always to be kind to the Home Secretary. The phrase that makes an extraordinary appearance in clause 28—“automatic deportation”—should not be laid at his door. I think that that phrase was used originally by the Prime Minister in an unguarded moment at Prime Minister’s questions. Many of the difficulties and knots in which the Government have entangled themselves ever since have resulted from an attempt to justify the use of that phrase by the Prime Minister. Nothing in the Bill suggests that anything will be automatic.

In that regard, the remarks of the Immigration Law Practitioners Association are very relevant. On the provisions to which the amendments refer, it said:

“These provisions do not address the problem, which came to light last year—that IND had not been making decisions in respect of foreign criminals, who were then released from prison into the community without any consideration of whether a deportation order should be made. The Bill refers to automatic deportation, which is a misnomer. Deportation will not follow automatically. Officials will still have to apply the provisions, and if officials do not do so no deportation will follow.”

That is clear, and to a large extent unarguable. ILPA continued:

“These provisions constitute an abrogation of responsibility on the part of the Secretary of State. He is empowered to make a deportation order, but currently has discretion not to do so if deportation is not justified on the particular facts of the individual case. As drafted, the Bill would remove the Secretary of State's discretion”.

Again, I am sure that that point appeals to the hon. Member for Birmingham, Yardley. I hope that the Minister will address it when he responds to the amendments.

ILPA went on to make a point that I feel very strongly about:

“These provisions effectively allow for indefinite detention”.

To a large extent, that is what we are now witnessing. Not unreasonably, the Government have reacted to a crisis—foreign criminals simply being let out—that led to the sacking of a Home Secretary. Now we are just trying to lock them up anywhere. Indeed, only yesterday, we saw that the Government are putting such people in immigration detention centres. At places such as Harmondsworth and Campsfield, violence and serious disorder has ensued. That is not only bad in itself, but bad for the future operation of detention estates.

Liam Byrne (Labour, Birmingham, Hodge Hill)

Will the hon. Gentleman take this opportunity—I know that it is not on his point—to congratulate the emergency services on their response to the incident at Campsfield?

Damian Green (Conservative, Ashford)

Absolutely. I am more than happy to do so, because I know how serious it was. It clearly could have been even more serious, as the Harmondsworth incident became. I know that the emergency services and those who were sent in to sort out the situation behaved admirably, bravely and quickly to minimise its effect. However, the incident illustrates starkly the fact that if we carry on doing what we are doing, the position will remain unsatisfactory.

The clause is not one of the parts of the Bill that will affect what might happen in future or in a theoretically constructed situation. It affects things that are happening now and going very wrong. That is why there are so many amendments for us to discuss and why I, my hon. Friends and the hon. Member for Birmingham, Yardley are seeking to improve the provisions. At the moment there is a toxic interaction of a prison estate that is too full and a deportation system that is not working. The only safety valve is the immigration detention estate, which is not designed to take people who have been sentenced to prison for serious offences. I am sure that that particularly unpleasant combination of failures is one thing that keeps the Minister awake at night.

I shall speak briefly to the amendments in my name. As the Bill is drafted, people will be liable to automatic deportation only if they have been sentenced to prison for at least 12 months. We have all sought different ways to improve that and relax that constraint. I seek to remove that criterion so that automatic deportation applies to any person who has served a prison sentence.

Despite the length of the debate, I suspect that nobody has said much with which the Minister does not agree. We all agree that the deportation of foreign prisoners is desirable in most cases—the debate is about prisoners only, which is an important distinction. We know that at the moment only people who have committed serious offences are sentenced to prison. That is all the more true given the current overcrowding in the prison estate. It therefore seems to us extremely easy to argue that if a foreign criminal has been given a prison sentence, by extension they should lose their right to stay in this country. They have abused the hospitality that it has afforded them and should therefore lose their right to be here.

I have referred several times to prison overcrowding. I am sure that it would help if the ability to deport foreign criminals who have been given a prison sentence were extended so that it was not restricted to those who had been sentenced to more than 12 months.

Amendment No. 127 is another of our amendments requiring the Secretary of State to report back. We had a lengthy, good debate this morning on the amount of parliamentary accountability that ought to come with such a Bill. It is clear that the clause is one of the most important parts of the Bill, so that applies particularly here. I have no wish to repeat what we said this morning, but I wish to make one point: this is an area in which ministerial rhetoric has been extremely strong. It was instructive that on Second Reading the Minister said that his best guess was that of the 10,000 or so foreign prisoners in British prisons, about 4,500 would be subject to the deportation provisions expressed in the Bill.

Liam Byrne (Labour, Birmingham, Hodge Hill)

Obviously, we need to distinguish the stock and the flow. I am grateful to the hon. Gentleman for helping me to clarify that point. The stock of foreign national prisoners is about 10,000, but what I said on Second Reading was that there would be about 4,500 considerations each year. Obviously, some people will be locked up for much longer and that figure will not always be appropriate.

Damian Green (Conservative, Ashford)

I appreciate that. Clearly, the prison population changes on a constant and daily basis. Nevertheless, the underlying point is that the process will not be automatic for a large number—many thousands—of foreign prisoners. Frankly, there is a gap between the rhetoric and the reality of what the Government are promising.

Amendment No. 142 is consequential to the previous amendment and, again, it would expand the range of the clause. This debate has been enormously important and if the Bill is designed to secure our borders, a much better deportation system than the present one is necessary. I am sure that the Minister recognises that and it is presumably why these clauses are in the Bill. The various amendments tabled by me and by my hon. Friends simply try to make that system genuinely effective and, once and for all, to make it clear that Britain’s borders are open. People are welcome to come to this country, but they are not welcome to come here and prey with criminal intent on its people. We need to clearly send out that message.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I am grateful to hon. Members for an excellent debate. In some of the exchanges betweenthe hon. Members for Hertsmere, Monmouth and Birmingham, Yardley—who is my neighbour—we have seen the different dynamics and ends of the debate. I will take the Committee through the journey that I have travelled because I have an enormous amount of sympathy with the argument that has been eloquently put by the hon. Member for Hertsmere.

What the Government have tried to do in the clauses that we have structured is provide for a degree of balance. The starting point for the debate is that those who come to this country, commit a crime and receive a criminal sentence face the prospect of deportation. As the hon. Member for Hertsmere said, existing powers on the statute books provide for that. The question left is how to ensure a stronger link between criminality and deportation. What we have tried to do, as the Immigration Law Practitioners’ Association has recommended, is to remove some of the Home Secretary’s discretion when making those decisions. The Home Secretary was clear that those who commit offences should face the prospect of deportation. What we are debating in these clauses is the manner of execution for that decision.

These clauses will accelerate the removal of foreign national prisoners from the country while increasing the certainly of removal. One of the current problems is that when foreign national prisoners are considered for deportation and handed a deportation order, nearly three quarters appeal against the order despite the fact that about 55 per cent. of appeals are dismissed and25 per cent. are withdrawn. That process of appeal takes up to six months and that is too long. When serious offences have been committed, we need to deport the individuals effectively and if they wish to undertake an appeal, they can do so from their country of origin, thanks very much.

The amendments that we have debated this afternoon fall into four categories. AmendmentsNos. 7, 8, 15 and 16, and 142, which is in the name of the hon. Member for Ashford, challenge the threshold. The hon. Member for Hertsmere raised a related point about offences committed by individuals without leave and raised points, on which there a number of related amendments, about suspended and consecutive sentences. The hon. Member for Birmingham, Yardley put a point from the other end of the spectrum about eliminating some of our proposals. I shall canter through those points as quickly as I can.

I shall reflect again on the debate that we have had this afternoon, because it has been important. I need to consult with colleagues in both the Home Office and the Department for Constitutional Affairs in order to explore whether there are areas in which we need to go further than we have provided for in the Bill. I understand that hon. Members may wish to put some of the issues to a vote, and that is fine. However, this is a signal that I shall reflect carefully on what has been said.

The starting point for the question of balance is important. We have deliberately drawn the debate widely; we have drawn the applicable population as broadly as we can. I said earlier that the debate covers some 3.4 million foreign nationals. The hon. Member for Monmouth asked where that figure came from. It came from the operational modelling, data analysis and reporting services published by IND in February 2007. If he wants more details, I shall be happy to try to provide them.

The point about the foreign national population in this country is that it includes individuals who might have arrived in this country moments after they were born. Indeed, there may well be foreign nationals in this country who were born in Britain after 1981 to parents who were not British, and are therefore not British citizens. They are foreign nationals with indefinite leave to remain; none the less, for the purposes of the Bill, they are classed as foreign nationals and are therefore subject to the foreign nationals clauses. Those individuals might have spent all their lives in this country, so we need to inject a degree of balance into cases in which we take into account people’s personal circumstances. That is why I think that it is not necessarily appropriate to remove all discretion for all offences that carry a sentence.

Some individuals, such as those born here to foreign national parents after 1981, have grown up in Britain and are to all intents and purposes British, but are not British citizens. If one of them committed an offence that was subject to a sentence of imprisonment, he would automatically be deported. Having reflected long and hard on that, I think that that would be disproportionate.

We have therefore sought to structure in a supporting mechanism, and that is recourse tosection 72 of the Nationality, Immigration and Asylum Act 2002. I do not know whether Committee members have had a chance to look at that, but it is important to do so. It is about 40 pages long and lists some 324 offences. Almost all of the examples that have been given by hon. Members this afternoon, whether of burglary, picking pockets or other types of theft, concern offences that appear on the section 72 list and therefore carry the sanction of automatic deportation. We wanted to avoid the situation in which somebody who was born in this country after 1981 is convicted of the non-payment of a fine and sentenced to a period of imprisonment and is then automatically deported. That is not the same as saying that he should not face deportation; provisions that are already in place mean that he would do so. However, the outcome would beat the discretion of the court or of the Secretary of State.

An important point was very well made by thehon. Member for Hertsmere about the automatic deportation of those who commit offences when they are here without leave. I confess to him that I started in precisely the same place as he did. However, what leads me to suggest that his amendments Nos. 58 and59 should be withdrawn is the fact that there could be situations in which injustice results from the changes that he proposes.

The scenario that has been put to me—it is, I am afraid to say, perfectly plausible in my experience as a constituency MP—is that of a woman who came over as a spouse, possibly through an arranged marriage, and her husband did not allow her to apply for indefinite leave to remain. Through no fault of her own, she therefore found herself without leave to remain in this country and then became a victim of domestic violence. Maybe one day she fought back, committed an offence and was therefore liable for imprisonment—that is how the hon. Member for Hertsmere has drafted the amendment—and she ends up being given a community sentence. However, under the precise drafting of the amendment, she would therefore be automatically deported. The protections that we have put in place might simply not bite in that case.

That is not to say that that individual—the woman in question—would not face automatic deportation; indeed, she would face automatic deportation. My argument is that, in cases as complicated as that, we may need the consideration process rather than an automatic process to unfold and it may be appropriate to provide for an in-country right of appeal, rather than, say, an appeal from Pakistan.

James Clappison (Conservative, Hertsmere)

I appreciate the way in which the Minister is contributing to the debate and promising to take matters away and think about them. However, may I come back to him on the example that he has just given to the Committee? I think that it was the amendments by my hon. Friend the Member for Monmouth that would change the wording to a sentence of imprisonment rather than 12 months’ imprisonment. The way that the Minister put it was that that individual would be liable to a sentence of imprisonment, but instead would receive a community sentence. That situation would not be covered by my hon. Friend’s amendment; there would have to be a sentence of imprisonment.

In the case that the Minister has outlined to us, if the lady in question committed an offence that resulted in a sentence of more than 12 months’ imprisonment, under his own trigger mechanism she would face automatic deportation in any case. In both cases, whether it is any sentence of imprisonment or more than 12 months’ imprisonment, that person would have the full protections afforded by exception 1, which would bring into play the question of her rights under the European convention on human rights, including the right to family life under article 8. I suspect that those rights would cover the sort of case that the Minister referred to.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I think that the amendment that was tabled in the name of the hon. Member for Hertsmere is No. 59, which says:

“Condition 3 is that the person is convicted of an offence liable to imprisonment, the commission of which took place when the person did not have valid leave to remain in the United Kingdom.’.

I understand, however, that there are a lot of amendments in this group.

I am less convinced than the hon. Gentleman that article 8 would kick in as a protection and I agree that, under my own provisions, if the sentence were for longer than 12 months there would indeed be automatic deportation. However, I do not think that there would be a court that, on review of the facts of that case, would necessarily hand down such a sentence.

I was also grateful to the hon. Gentleman for his point about administrative removal, which is, of course, important. That is because against administrative removal, the right to appeal is out-of-country; to come back in, one would obviously require entry clearance.

The point about suspended and consecutive sentences was one of the most important parts of the debate this afternoon. The examples of offences that were given were all offences that would have been captured by section 72 of the Nationality, Immigration and Asylum Act 2002 and therefore would have resulted in automatic deportation. The argument about suspended sentences comes back to some of the points made by my neighbour, the hon. Member for Birmingham, Yardley. We want to try to retain the link between serious offences and automatic deportation.

However, the issue with consecutive sentences is different. The hon. Member for Hertsmere was quite right to question me quite closely about this matter when I gave oral evidence to the Committee at the beginning of our deliberations. The issue with consecutive sentences is this: if somebody commits a series of offences that accumulate, should there be automatic deportation or should there be a more flexible process of consideration by the Secretary of State, with an in-country right of appeal? There is no question whether someone is facing deportation; they do face deportation. The path is simply different. The reason we propose the latter course is that it is difficult to define in the Bill the period over which the offences might be committed. For example, someone may have committed an offence when he or she was 15 or 16; for the sake of argument, let us say that the person was 18. The individual may have been born in this country after 1981, grown up here, and then have committed an offence 20 or 30 years later.Under these provisions, that would result in automatic deportation.

I do not dispute the fact that that individual should face the prospect of automatic deportation, but I think the force of the automatic deportation provisions may be the wrong approach and risk an injustice, which would be unwise. The protection of an in-country right of appeal may also be important in order to provide that the Secretary of State does not get it wrong. The point is simply that the period is difficult to stipulate and the number of offences committed within that period is difficult to set in stone. Again, I am not in a very different place from the hon. Member for Hertsmere, because his real concern is about serial offenders or recidivists.

A different way to tackle that problem is by amending section 72 of the 2002 Act. That Act contains an order-making power, so it would not be difficult for the Government to amend the section 72 list and introduce changes. I was interested that the hon. Gentleman included burglary in the crimes he mentioned, because that is already on the list. It is a faster, more appropriate way to tackle the problem that he highlighted. The problem of defining the time window in which the offences are committed is so difficult that it may warrant a different process for considering automatic deportation.

I think I have picked up most of the points that were made except the one that was raised by ILPA, cited by the hon. Member for Ashford, which was concerned that we might be locking people up indefinitely. There are, of course, the usual protections under the European convention on human rights. We cannot lock people up indefinitely; the IAT—the immigration appeal tribunal—takes a pretty stiff view of that and looks for the immediate prospect of deportation and removal.

James Clappison (Conservative, Hertsmere)

I am grateful to the Minister for the manner in which he has replied to the debate. My hope throughout has been that he would at least indicate a preparedness to think constructively about the amendments, which highlight problems that must be tackled and would improve the Bill if they were implemented.

I want to get one little disagreement out of the way and then I shall move on to more constructive matters. The Minister deftly fudged the distinction between facing deportation and automatic deportation. When the Home Secretary was speaking about facing deportation he was clearly talking about these provisions for automatic deportation. There would have been no point in his making those statements if he was going to leave the existing system as it was in the spring of last year.

We all know about the existing provisions for deportation; one could say that somebody was facing deportation in those circumstances. But when the Home Secretary talked about facing deportation he meant automatic deportation, as is clear from the context and the words that he used. However, we will not get far by going over that ground again. I am trying to improve what is presented as automatic deportation.

On the person who is here illegally, the Minister is quite right; I was talking about the amendment tabled by my hon. Friend the Member for Monmouth. The amendments that address people who are illegally present in the country relate to the commission of an offence. However, I would ask the Minister to reflect on that. I listened to the example of the lady who comes to this country in the sad circumstances of a marriage that does not turn out to be happy and has problems of domestic violence; if she does not have leave to remain, such a person would be liable none the less for administrative removal.

Such a person would have rights to have that case considered, but I believe that those rights would be on all fours with what is contained as a protection in the existing Bill—namely, the right to have the case considered against the background of the European convention. Such a case would be covered by the exception of the person’s rights under that convention. As I have already pointed out, if the sentence that the person received happened to be more than 12 months, quite likely in those circumstances, that person would face automatic deportation in any case. I would invite the Minister to think about that.

Would the Minister also think carefully about the position of repeat offenders? He has been trying to find examples which might give a little wriggle room on these questions. His point was about repeat offences which were a long time apart, of somebody who commits an offence as a young man and then later commits another offence.

I would respectfully remind the Minister that this amendment is about somebody who is being sentenced on the same occasion for a number of offences. It is not a question of repeat court appearances; it is about someone who is sentenced on the same occasion and the court chooses to impose consecutive sentences for each offence.

Liam Byrne (Labour, Birmingham, Hodge Hill)

The hon. Gentleman is being generous, but as I understand it—and I am not a lawyer—it is possible that an individual might be sentenced on the same day in the court to consecutive sentences for offences that were committed a very long time apart. It could just be that the offences are brought together on that day.

James Clappison (Conservative, Hertsmere)

The Minister is right. That was the case that I had in mind. However, at a single court appearance that person might receive a sentence of imprisonment for one offence, which, although it is unlikely, may have been committed some time beforehand, and then receive a prison sentence for another offence, which was presumably committed more recently. Therefore that person would receive a total of two sentences. It is still repeat offending.

I cannot find it in myself to feel that such a person should receive additional protections. If a person repeatedly offends, even if the offences are a little way apart, and on each occasion it is considered that the offence is so serious that only a custodial sentence can be imposed, the totality of that person’s offending should bring that person within these provisions for automatic deportation.

The Minister’s example goes to the furthest reaches. Nine times out of 10, if not 99 times out of 100, the offences will be much closer together in time than that. Such a person would have the protection of the exception for their convention rights, the right to family life and all the other protections that arein place. I ask the Minister to think carefully about that.

I would also like the Minister to consider the problem of suspended sentences. There, even his example could not apply because when someone receives a suspended sentence, that person is told that it will last for a certain length of time. It is usually two years, although the time could be shorter—I think it is a maximum of two years; it might be three. It is certainly for a limited period. We are talking about somebody who receives such a suspended sentence and then commits another offence during the currency of that suspended sentence so as to produce a total sentence of more than 12 months imprisonment; a person who repeats offences close together, has two court appearances and refuses to heed thewarning that has been given through the first court appearance.

I am grateful to the Minister for confirming that my understanding is correct—at least he has not said that it is wrong. However, it is just that the Minister can think of some examples that might result in hard case stories. That is my interpretation of the provisions. I cannot see any conceivable circumstances in which a person in that position should be treated more leniently than a person who appears in court and for a single offence receives a prison sentence of 12 months and faces automatic deportation. It is not just or in the public interest to have someone in this country who commits repeated offences and takes no notice of what the courts have said.

I am grateful to the Under-Secretary of State for the spirit with which she has replied to the debate. I am not prepared at this point to retreat from the substance of what I have said, but I will reflect carefully on what the Minister has said. He has promised to think carefully about what I have said in the debate. If he is prepared to do that he may produce amendments that are better technically and have the same effect of dealing with the problem of repeat offences, or perhaps deals with them in a different way.

There is a problem here of dealing with repeat offenders. In other evidence that it has given, Migrationwatch highlighted that problem. I think that it may have been mentioned on Tuesday, but it has been highlighted on previous occasions. I believe that in existing provisions, which the Home Office has had as guidelines for dealing with deportation, recognition has been made of the case of repeat offenders. Therefore, we have to deal with repeat offenders here. On the basis that the Minister is prepared to think about and reflect on what I have said and possibly come back with some further measures at a later stage in the Bill’s consideration, I seek leave to withdraw my amendments.