My Lords, I rise to speak to Amendments 121 and 122. I thank the noble Baroness, Lady Hamwee, for lending her support in signing Amendment 122. As the noble Baroness set out, and as we heard from the Deputy Chairman, if Amendment 120 carries favour with the Committee, Amendments 121 and 122 could obviously not be moved.
I intend these amendments to probe my noble friend the Minister. The thinking behind this is that it represents the concerns expressed to me by Law Society
of Scotland, to which I am grateful for drafting the amendments and the wording that it has used. Rather than just deleting the offending wording in new subsections (D1) and (E1), I am proposing to delete “arrives in” from the relevant sections of Clause 39 and insert “enters” instead.
Clause 39 of the Bill adds a new component to the existing offence of illegal entry, and subsection (2) thereof adds new subsections to Section 24 of the Immigration Act 1971. New subsection (D1) makes it an offence for someone who “requires entry clearance” to arrive in the UK without “a valid entry clearance”. An entry clearance is a visa issued before travel, because it becomes leave to enter when the person enters the UK. The burden of proving that a person holds valid entry clearance lies on that person. This is of concern, given that EU citizens are not routinely given any physical evidence of their entry clearance if they apply using the UK Immigration: ID Check app—no visa vignette is placed in their passport. So the key addition to the offence provision is to make arrival an offence.
The Explanatory Notes clearly state:
“The concept of ‘entering the UK without leave’ has caused difficulties about precisely what ‘entering’ means in the context of the current section 24(1)(a) of the 1971 Act.”
Entering is defined in Section 11(1) of the Immigration Act 1971, which I recall studying at the University of Edinburgh some time ago, as disembarking and subsequently leaving the immigration control area. Arrival is not given any technical legal definition, so it will simply mean reaching a place at the end of a journey or a stage in a journey. So it is unclear whether a person needs to reach the mainland in order to arrive in the United Kingdom.
My first question to my noble friend is: can she clarify at what point a person arrives in the United Kingdom? The Explanatory Notes and the separate definitions of the United Kingdom and United Kingdom waters seem to suggest that arrival on the mainland is necessary. The new provisions will allow prosecutions of individuals intercepted in UK territorial waters and brought into the UK, who arrive in but do not technically enter the UK, as set out in paragraph 388 of the Explanatory Notes.
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Although entering UK territorial waters itself has not been criminalised, the status of migrants in UK waters appears unlikely to be significantly altered by the new power to regulate work in territorial waters. The current maximum sentence for illegal entry is six months’ imprisonment. As set out before us this evening, this is being increased to four years—or five years for entering in breach of a deportation order.
I conclude by again asking, to be absolutely clear, what the purpose of these provisions is. Does an individual have to physically enter the United Kingdom on land and disembark, or are the Government now entitled to prosecute purely for entering UK territorial waters? This would be a significant change, and one that I believe needs to be clarified to the Committee this evening.