Border Security, Asylum and Immigration Bill

(Limited Text - Ministerial Extracts only)

Committee stage
Tuesday 8th July 2025 Lords Chamber

[The Minister of State, Home Office (Lord Hanson of Flint) (Lab)]

My Lords, I am tempted to just say “I agree”, but it is important that we put some points on the record.

I thank the noble Baroness for her amendments. Amendment 59 seeks to include an explicit carve-out in the clause to list humanitarian support as a reasonable excuse. The list of reasonable excuses is already quite wide and includes specific exemptions for those undertaking or preparing to undertake the rescue of individuals from danger or serious harm, as well as for those acting on behalf of organisations that provide assistance to asylum seekers and do not charge for their services. I put to the noble Baroness that the list of reasonable excuses in this clause is non-exhaustive, and the provisions ensure that legitimate humanitarian activity is not captured by the offence. I hope that with that assurance, she will withdraw Amendment 59 accordingly.

Amendment 60, again to Clause 16, also provides a list of very reasonable excuses where a person acts for a purpose that is reasonable in the circumstances. That list is non-exhaustive and the wording is intentionally broad to allow courts to assess on the facts of each case whether an individual’s conduct falls within the scope of legitimate activity, including carrying out legal work. In practice, as previously mentioned, law enforcement agencies exercise investigatory discretion when assessing the circumstances of any case, and the prosecution will apply the public interest test when considering charges. That means that individuals acting within the scope of their legal role will not be targeted for prosecution. I hope that gives the noble Baroness some reassurance on the points that she has raised in the amendment.

The clause as drafted provides robust protection for those acting lawfully while allowing law enforcement to focus its efforts—as I have said in every discussion we have had to date—on the groups facilitating illegal and dangerous crossings. I hope that is a reassurance to the noble Baroness and she will not press the amendment, but essentially these are areas where we think there is clarity. Therefore, I hope she will reflect on those points and withdraw the amendment.

[Baroness Hamwee (LD)]

My Lords, of course I recognise that the lists are not exhaustive. It seemed to me to be fairly helpful to use the term “humanitarian”—but there we are.

I am puzzled by the opposition to the reference to lawyers acting in the field. I wonder whether anybody in this Chamber who provides professional services would like to be dependent on discretion, on the public interest test, particularly when the specific provision in subsection (8)(c)(ii) is that the organisation

“does not charge for its services”.

The legal aid lawyers and others acting for asylum seekers and refugees do not get paid very much, and sometimes they are employed by charities that do not get paid directly for their services, although they raise funds to enable them to carry out those services.

This is not special pleading on the part of the legal profession. It is pleading on behalf of the recipients of legal services, in fact, because of the widespread concern that the relevant legal services are not easily accessed. There are far too many legal aid deserts and far too few people who are in a position to provide advice and representation in this field. I had better not say—I suppose I am about to—that it strikes me a little that “not invented here” is the response to this. That will not win me any friends, but I do not see a damage or a harm that would be caused by including an amendment on the lines of the second in this group.

I am clearly not going to pursue the matter tonight, but it is a concern if this is not accepted and if individuals are told they should just be dependent on discretion and the CPS’s good sense. I beg leave to withdraw the amendment.

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[Lord German (LD)]

My Lords, I speak to the amendment in my name and that in the name of the noble Baroness, Lady Hamwee. We have probably exhausted the use of recklessness—we have had it, virtually, in every other group—but, in essence, I also have a very specific issue to raise in respect of the amendment in my name, which, again, is about ensuring that the right people are criminalised. It is about those who are coerced into steering the dinghies which have been made available.

Paragraph 57 of the JCHR report refers to research by the associate director of border criminology at Oxford University, who said that

“the most common reasons for driving the dinghy were being under duress from smugglers in Northern France; needing a discount on the crossing; or having previous experience driving boats, either from previous employment or irregular journeys”.

There are differences between those groups, and it is the group of people who are under duress that are of interest in this amendment.

First, I want to be clear that the actions of criminals who run the boats in northern France are appalling. They have total disregard for human life. They are not a benevolent facilitator of asylum seekers but criminals who see this trade as a source of great profit. I was able to see a number of those dinghies in the last two weeks, and I heard from the French authorities about some of the actions and tactics that the smugglers adopted towards migrants to evade law enforcement and maximise profit by cramming as many people as they can on to those flimsy boats.

I want to explain something to people who often ask me, “Why don’t you just cut and slash the boat?” There was an example of that last week when the French authorities went into the water but slashed only one cylinder. The reason for that is that those boats have no solid base inside between the floating parts. If you slash them, the boat folds in half and drowns all the people already in the middle of the boat. Therefore, the French authorities are most concerned about taking that sort of action and are much more concerned about going for the motors, which is what I hope they will be doing in the coming weeks. It is right that those forcing people on to these boats should face the full force of the law. Having seen the flimsiness of them, I am absolutely convinced that it is all about making huge amounts of money.

The problem is that this offence is drawn more widely than the Government have set out as their intention. If we are looking solely at people who are coerced or compelled to steer the boat under duress from the smugglers, that is not very much different from the coercion of victims of trafficking, as highlighted by the noble Baroness, Lady May, in this and previous amendments. As the clause is currently drafted, it is not focused sufficiently on those who the Government wish to target and would also catch those asylum seekers who are victims of coercion. I am told that you can identify the people who have been steering these boats: the heat from the very cheap engines means that people get burns on their hands as a result of doing it. I know that the British and the French authorities can easily identify who has been steering a boat; the difficulty is whether that person has been coerced into it. That is why this amendment is in place—simply to give an opportunity to understand what the Government would do in those circumstances.

I appreciate that, in Committee in the House of Commons, the Minister stated that:

“In practice, the focus will be intelligence-led and targeted at those who law enforcement believe to be working in connection with organised criminal networks”.—[Official Report, Commons, 4/3/25; col. 128.]


It was also stated that

“the CPS will exercise … discretion, and the courts will be able to consider all the circumstances when deciding the appropriate sentence”.

While prosecutorial discretion is an important safeguard, maybe it is not a substitute for clarity within the Bill itself. On that very specific matter, I ask the Minister to give his consideration.

I must also say, in respect of the earlier amendments that we have just heard, that it seems to me that the Conservative Party wants to treat everyone in the boat as a criminal. If that is the case, does the Minister agrees or disagree with that? If he agrees, what is the consequence of treating asylum seekers as criminals when they arrive in our country?

[Lord Hanson of Flint (Lab)]

I am grateful to noble Lords for tabling these amendments. I think there is a common aim in the Committee to ensure that we take action to prevent illegal migration, dangerous crossings and fatalities at sea. While we may have different views on some of the issues, this is a common aim that we all share. The endangerment offence, which we will talk about now, is a tangible measure to address dangerous acts during crossings and introduces consequences for such behaviour that risks or causes serious injury or death.

A number of amendments have been brought forward by noble Lords. I start, if I may, with Amendments 63 and 64, in the names of the noble Lords, Lord Davies and Lord Cameron of Lochiel. Amendment 64 seeks to apply the offence to any individual who enters the UK illegally using a vessel that they could not reasonably have thought was safe for the purposes of reaching the UK, and Amendment 63 seeks to remove reference to specific countries.

I understand the intention of Amendment 63. The named countries in Clause 18 are appropriate to capture the focus on channel crossings, which is the Government’s main focus with this legislation, and provide clarity on which body of water is the focus. The reason we have looked at the particular three countries named in the Bill is that that is where the majority of the focus is today. I understand the points that the noble Lord has mentioned, but this has been done to focus the approach on channel crossings.

Amendment 64 would fundamentally alter the focus of Clause 18. Instead of targeting specific acts, this amendment would criminalise any person for boarding an unsafe vessel. The reality is that none of the vessels can reasonably be considered safe, which means the amendment would capture all those making a journey. Is it in the public and taxpayer interest to put every small boat arrival through the criminal justice system? I sense agreement from the noble Lord, Lord German, on that point.

The Government do not condone crossings, far from it. Noble Lords have heard during this debate that we are focused on taking action. However, the decision to board these flimsy boats is often made in chaotic circumstances, with the condition of the boat and the passage outside the individual’s control. We saw some of this in pictures at the weekend when the French took action. Setting out what is reasonable in that scenario is almost impossible, and what may be judged safe in one moment may quickly change. The weekend’s events showed that very clearly. Furthermore, adding the requirement of an unsafe vessel does not add to existing offences of illegal entry and arrival. I hope the noble Lord will reflect on that explanation.

Amendment 65, tabled by the noble Baroness, Lady Hamwee, would require that the relevant act was done “intentionally or recklessly”. Amendment 66, in the names of the noble Lord, Lord German, and the noble Baroness, Lady Hamwee, would require the act to be committed intentionally and/or for financial gain. I recognise the intention behind requiring that the person committed the act intentionally or recklessly. That mirrors the recommendation by the Joint Committee on Human Rights, which I will respond to before Report. I thank the committee for its work and will consider its conclusions carefully. However, the amendment as currently proposed would undermine the effectiveness of the offence. Focusing on whether someone commits an act intentionally or recklessly pulls the focus of the offence away from the serious harm or risk of such harm caused to vulnerable people in these situations and, crucially, would make it easier for criminals to evade the offence.

Adding a requirement for financial gain would undermine the intended effect. A person does not immediately need to financially gain for it to be appropriate for there to be consequences for dangerous acts that cause or risk serious injury or death of another. The amendment conflates measures in the Bill that tackle the facilitators behind small boat crossings and those, such as the endangerment offence, that are a response to the serious harms posed by individual actions. Those who cause risk or harm should face consequences.

The endangerment offence rightly targets the most dangerous forms of behaviour and offers increased sentencing. Existing safeguards are in place. Prosecution services will, as I have said throughout the Bill, consider the particular facts of a case and whether it is in the public interest to prosecute. I hope I can reassure the noble Baroness and the noble Lord, Lord German, that the offence has been designed to be proportionate and effective, and addresses the most dangerous behaviour in order to reduce harm.

I thank the noble Baroness, Lady May, for Amendment 67. This may bring her a sense of déjà vu but I am going to say pretty much what I said in the last group of amendments. It is our assessment that Section 45 of the legislation that she facilitated in 2015 is a defence against prosecution where an individual commits the offence as a direct result of, or is compelled to commit an offence as a result of, their exploitation. The example the noble Baroness helpfully gave of a person entering a boat to save a child would be covered by Section 45 of that Act. It includes the catch-all defence of modern slavery for actions deemed to be criminal under this legislation. The national referral mechanism, which I know the noble Baroness is familiar with, is part of that defence, and I hope that those safeguards are in place.

On top of that, we have the standard prosecutorial defence mechanism whereby the prosecution—the CPS in this case—would have to make a judgment. The example that the noble Baroness has given would, I think, give pause for thought for that discretion by the CPS. With the general criminal defence of duress, I hope those two issues together will reassure the noble Baroness on that point.

The new endangerment offence addresses the current gap in legislation. We have specifically and carefully designed it to address dangerous acts that create further risk in what are already dangerous crossings. I hope that gives some comfort to the noble Lords who tabled the amendments. It is about focus on the channel. It is about making sure that we give proper protections where required and that we have clarity in the law. I hope that they will not move their amendments.

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Moved by

[Lord Hanson of Flint]

70: Clause 19, page 13, line 32, at end insert—
“(c) a constable of the Police Service of Scotland,(d) a constable of the Police Service of Northern Ireland, or(e) an NCA officer,”Member’s explanatory statement
This amendment expands the definition of “authorised officer” for the purposes of the powers in clauses 20 to 23 to cover constables of the police services of Scotland and Northern Ireland and National Crime Agency officers.

[Lord Hanson of Flint (Lab)]

I begin by reaffirming the policy position of the Government for the use of search and seizure powers, which is an approach grounded in the principles of proportionality, accountability and the rule of law. The amendments in my name before the Committee today have an underpinning policy objective, and that is to ensure that the United Kingdom of Great Britain and Northern Ireland has the necessary powers to search for, seize, retain and use information from electronic devices belonging to irregular entrants or arrivals where there are reasonable grounds to suspect that an electronic device is likely to contain information relevant to the offences under Sections 25 and 25A of the Immigration Act 1971. These powers are vital to disrupt organised crime groups. We must ensure that authorised officers are fully equipped to use the powers effectively and we must have safeguards in place against misuse.

Government Amendment 70 expands the definition of “authorised officer” to include

“a constable of the Police Service of Scotland … Northern Ireland, or … an NCA officer”.

This now ensures that constables from devolved police services and the National Crime Agency, who were already authorised, may exercise the full powers available to them under the legislation.

The National Crime Agency-focused amendments that follow on from government Amendment 70—Amendments 75, 77, 79, 80, 81, 82, 83, 92 and 94—collectively ensure that NCA officers have all the relevant safeguards and protections and legal clarity in using these powers. Government Amendments 75, 79 and 92 require that the NCA officers exercising powers under Clauses 20, 21 and 23 must be authorised by an officer of at least inspector equivalent grade with the requirement to inform a superintendent or equivalent officer, in line with safeguards applied to police constables.

Government Amendments 77 and 81 provide protections under paragraphs 21 and 22 of Schedule 5 to the Crime and Courts Act 2013, ensuring that those who obstruct or assault an NCA officer during the exercise of their powers under Clauses 20 and 21 may face criminal prosecution. Government Amendment 80 enables NCA officers to use reasonable force where necessary in the execution of their powers under Clause 21. Government Amendments 82 and 83 provide for the lawful transfer of seized items to an immigration officer or the Secretary of State. I apologise for the number of amendments but I hope that they are all relatively straightforward. Government Amendment 94 provides legal clarity by defining “NCA officer” within Clause 26.

These amendments are necessary and proportionate to enable officers to perform their duties effectively. The National Crime Agency, as noble Lords will know, is the central agency in combating serious and organised immigration crime, and previously the Bill sought to include NCA officers by enabling them to use their immigration powers. However, NCA officers are triple warranted, holding the powers of constable, immigration officer and customs officer. Through ongoing engagement with the NCA, it became clear that it would be more operationally effective for the Bill explicitly to enable them to exercise their police powers under this legislation.

Government Amendment 70 extends these powers to the devolved police services in Scotland and Northern Ireland, so that we have consistency across the United Kingdom as a whole. Members will know that criminal organisations do not respect administrative boundaries and will operate wherever they can. Due to the inclusion now of devolved police services, government Amendment 89 ensures that appropriate legal procedures are in place for the disposal of relevant articles held by constables of Police Scotland and the Police Service of Northern Ireland.

There are several consequential amendments—Amendments 85, 86, 87, 88 and 93—which are minor and technical in nature, but will, I hope, help to ensure the legal coherence of the Bill. In essence, the amendments extend powers to the NCA, police in Scotland and police in Northern Ireland, with appropriate safeguards. I commend them to the Committee.

[Lord German (LD)]

To be absolutely clear, are there further amendments in this area to Clause 33 concerning trailers, or is that covered in this group? I will give the Minister time to think about that.

The Minister sent us a letter on 17 June relating to these amendments. On Scottish and Northern Ireland Ministers, the letter said that an amendment had been tabled to Clause 33(9)—this is why I ask the question—which specifies the persons and bodies to be consulted before making regulations under Clause 33(8), which is about trailer data. It says that: “at present, this amendment is framed in such a way that the Northern Ireland and Scottish Ministers need be consulted only where the Secretary of State considers it appropriate to do so”. In what circumstances would the Secretary of State consider it appropriate so to do? If he wants to answer some time later, that would be fine.

[Lord Hanson of Flint (Lab)]

I always hope to be helpful to the noble Lord. I suggest that we consider those matters in some detail when we reach Clause 33. These amendments relate to the additional powers for the National Crime Agency and bringing the Police Service of Northern Ireland and the Police Service of Scotland into the remit of the legislation. They have all been done in consultation with the three responsible bodies—the Home Secretary and the two devolved Administrations. I am very happy to examine Clause 33, but I think it would be in order to do so just after Clause 32 and before Clause 34.

[Lord Davies of Gower (Con)]

My Lords, we appreciate that, as the Government go through the Bill, they will make minor adjustments to the language or corrective amendments to tighten it up, but the amendments in this group incorporate substantial changes that could well have been included in the Bill before. The fact that we are now turning to 17 government amendments, with at least eight substantive ones, speaks to the fact that the Bill could have been more carefully drafted. I will not take too much time dwelling on this issue, but it is important to raise that we on this side have been clear throughout Committee that we need to develop legislation that is robust and unambiguous and that can tackle this serious problem. That the Government are only just realising at this late stage that they have missed out key provisions perhaps does not inspire confidence.

Broadly speaking, we support the amendments in this group, in so far as they allow the more effective enforcement of some of the provisions in this Bill, in particular specifying that the NCA will have the capability to seize relevant articles and exercise reasonable force. However, we need to make sure that these powers are exercised with due care and proper procedure and process. I hope the Minister will set out how this will be ensured.

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[Lord German (LD)]

I have just double-checked all the amendments that have been laid, and there is none as was laid out in the letter. I will not ask the Minister to reply to this, but it is a lacuna. The letter says that an amendment has been tabled to Clause 33(9). According to the Marshalled List, it is not there. I do not expect a substantive reply, but I guess that an amendment will be laid, and the letter was slightly inaccurate.

[Lord Hanson of Flint (Lab)]

I hope that I have been clear with the noble Lord, Lord Davies of Gower, about what these amendments are for. As ever, as Ministers we all know that things are organic and in development. If requests come in, loopholes are found or things need to be tightened up, amendments are part of the parliamentary process, as is reflection on amendments that colleagues table on Report in both Houses from the Opposition and other Benches. It is an organic process. I hope I was clear, and I do not think he objects to the principle behind why they have been tabled. I am grateful for his support.

In reply to the noble Lord, I will just say that I do not write inaccurate letters. I try to be open and fair, which is why the letter was issued. We are not yet at Clause 33; I will give him chapter and verse on all the issues that he has raised when we get there, which is the appropriate part in our proceedings to discuss those matters.

Amendment 70 agreed.

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Moved by

[Lord Hanson of Flint]

75: Clause 20, page 14, line 36, at end insert—
“(8A) An NCA officer may exercise a power to search under this section only if the search is authorised by an NCA officer at or above a grade that is equivalent to the rank of inspector.(8B) If an NCA officer gives an authorisation under subsection (8A), the NCA officer must, as soon as it is practicable to do so, cause an NCA officer at or above a grade that is equivalent to the rank of superintendent to be informed.”Member's explanatory statement
This amendment provides for the authorisation by a senior National Crime Agency officer of a power to search under clause 20 exercised by a National Crime Agency officer.

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Moved by

[Lord Hanson of Flint]

79: Clause 21, page 15, line 8, at end insert—
“(3A) An NCA officer may seize a relevant article under subsection (1) only if the seizure of the article is authorised by an NCA officer at or above a grade that is equivalent to the rank of inspector.(3B) If an NCA officer gives an authorisation under subsection (3A), the NCA officer must, as soon as it is practicable to do so, cause an NCA officer at or above a grade that is equivalent to the rank of superintendent to be informed.”Member's explanatory statement
This amendment provides for the authorisation by a senior National Crime Agency officer of a power to seize an article under clause 21(1) exercised by a National Crime Agency officer.

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Moved by

[Lord Hanson of Flint]

85: Clause 21, page 15, line 28, leave out “or (10)” and insert “, (10), (11) or (13)”
Member's explanatory statement
This amendment is consequential on my amendment to Clause 21, page 15, line 40.

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Moved by

[Lord Hanson of Flint]

92: Clause 23, page 18, line 10, at end insert—
“(4) An NCA officer may access, examine, copy, retain or use information under subsection (1) only if the accessing, examination, copying, retention or use of the information is authorised by an NCA officer of a grade that is equivalent to the rank of inspector or above.(5) If an NCA officer gives an authorisation under subsection (4), the NCA officer must, as soon as it is practicable to do so, cause an NCA officer of a grade that is equivalent to the rank of superintendent or above to be informed.”Member's explanatory statement
This amendment provides for the authorisation by a senior National Crime Agency officer of a power under clause 23(1) to access etc information on a relevant article exercised by a National Crime Agency officer.

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Moved by

[Lord Hanson of Flint]

93: Clause 24, page 18, line 14, leave out “(10)” and insert “(13)”
Member's explanatory statement
This amendment is consequential on my amendment to Clause 21, page 15, line 40.

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Moved by

[Lord Hanson of Flint]

94: Clause 26, page 19, line 23, at end insert—
““NCA officer” means National Crime Agency officer;”Member's explanatory statement
This amendment inserts a definition of “NCA officer” into clause 26 for the purposes of clauses 19 to 23.