My Lords, my noble friends and I have very considerable objections to Clause 8 which, while I was going to say will achieve nothing, will possibly achieve too much. It is not a positive and helpful development in any way and will cause very considerable difficulties and negative consequences. The noble Lord, Lord Rosser, has covered the ground very thoroughly, but I do not think I can stress our objections too heavily.
I add to some of the things that he has said by a reference to what happened in Italy. The email from
which I quote comes from the executive secretary of the Council of Europe Convention on Action against Trafficking in Human Beings. I met her and some of her colleagues a few months ago when she mentioned what had happened in Italy. She followed this up by explaining that in 2009 Italy criminalised irregular entry and stay, a situation equivalent to ours. She said that it was,
“criticised for creating an overly-bureaucratic system … which push migrants into illegality … the introduction of the offence of illegal entry and stay has created additional difficulties in securing convictions as witness statements given by irregular migrants are not considered as trustworthy and they are afraid to report cases of exploitation … for fear of being detained and expelled. The UN Special Rapporteur on trafficking in persons, especially women and children, has stressed in her recent report the negative consequences of the criminalisation of irregular migration for victims of trafficking”.
The outcome of the problems was that, in January 2014, Italy’s Senate overwhelmingly approved the Italian Government’s decriminalisation of illegal immigration. There we have a real-life example.
Of course this is not entirely new. Criminal offences were created for Romanian, Bulgarian and Croatian workers working without authorisation. I know that the Immigration Law Practitioners’ Association has asked the Home Office for statistics on the numbers of prosecutions for those offences, and also whether the employers were prosecuted or made subject to a civil penalty when the employee was prosecuted. The ILPA has not received that information. It would help us all if we could see figures to understand whether offences resulted in a displacement of enforcement activity away from employers to the workers.
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The noble Lord talked about the deterrent effect of a criminal offence on those who might otherwise feel able to report exploitation and abuse. What safeguards will there be with regard to the identification of trafficking and forced labour indicators? Will those be written into guidance on enforcement?
I am not sure whether the noble Lord added to his list of concerns the specifics of not risking referral to the national referral mechanism if there is a negative conclusive grounds decision. That would achieve the very opposite of what a victim would be hoping for. There is also the concern that traffickers may use the offence as another tool to coerce victims in exploitation.
With regard to what the noble Lord has indicated is the only reason for an offence—the realisation of assets—those who would be the subject of this would be likely to have very limited realisable assets. I confess that I have not looked at the impact assessment on this, which might show what the Government think they could claw in as a result, but will it really be cost-effective or in the public interest to pursue confiscation proceedings?
We added our names to Amendment 63. I support what the noble Lord said regarding the possibility of a defence under the Modern Slavery Act, but only to a limited extent—it is better not to prosecute at all.
We have our own probing amendment on voluntary work and volunteering. I had not realised until recently that voluntary work was considered work for the
purposes of the restrictions on asylum seekers working. It is particularly harsh, for reasons that we will come to in debate later in the Bill on the right of asylum seekers to work, that they cannot even undertake voluntary work—volunteering is different. I would simply summarise it as the importance of self-respect on the part of asylum seekers and the wish to contribute to society, as well as boredom. Those are among the concerns.
Finally, we have an amendment that would substitute,
“is reckless as to whether”,
for,
“has reasonable cause to believe that”,
an employee is disqualified. That would make it a higher hurdle. Amendment 67 would also insert,
“reckless as to whether the employee is an adult subject to immigration control”.
On that basis, most asylum seekers do not actually have “leave”. They are on temporary admission while their applications are considered. That is a technical point as to whether the legislation will be correctly framed.
However, I would like to see the back of this altogether. I hope that at least making that point on these clauses will not be relevant because we might not be considering them for much longer. One lives in hope.