Immigration Bill — House of Lords, 2016-02-01
Topic: Immigration
Richard Rosser (Labour, Centre-left): As was said in the previous discussion, the Bill creates a new criminal offence where a person, "drives a motor vehicle on a road or other public place at a time when the person is not lawfully resident in the United Kingdom" Of course, this new offence is part of the Government’s objective, as set out so clearly in the Explanatory Notes, of, "making it harder to live and work illegally in the UK", to encourage those who do not have the appropriate immigration status to "depart voluntarily" and, where they do not do so, to use other measures in the Bill to "support enforced removals". As with the new offence of illegal working for employees, however, there appears to be no defence for this new offence in relation to driving. The purpose of our amendment is to seek to provide such a defence for those prosecuted for driving while illegally in the UK if they can show that they had reason to believe that they had the legal right to be here. For example, there is the kind of person who has been sponsored but, unbeknown to them, there is something wrong with the sponsorship. As a result, they may fall foul of this new offence because they do not have the status they should, although they had reasonable belief of their right to be here and acted completely in good faith. Having a criminal record has serious implications for a person under immigration control, as such records can never be spent for immigration and nationality purposes, must always be declared and can form the basis for refusing a person leave, settlement or citizenship During the debate on this issue in the Commons, the Solicitor-General confirmed that effectively there was no defence for this new criminal offence. He said in response to a question on this point that a person who was prosecuted for this new offence would have the opportunity to, "put in mitigation about their belief as to whether they were legally present in the UK, and that would affect any sentence that might be passed" Of course, that is about mitigation of sentence, not a defence to the charge for which a person can be sent to prison for 12 months. The second point made by the Solicitor-General was that, "the Crown Prosecution Service will have guidance to ensure that migrants are not inappropriately prosecuted for this", new criminal offence. He went on: "Should a migrant be able to genuinely show that they believed themselves to be legally present, the public interest test … would apply" In other words, as with the offence of illegal working for which there is no defence for those employed, it would be up to the Director of Public Prosecutions rather than Parliament to decide whether there is a defence against an offence for which there is no such provision made in the Bill In the Commons, the Government accepted and recognised the reasons behind this amendment but maintained that it was "very broad", "very subjective" and would create scenarios in which, "a defendant might claim they had reason to believe they were in the UK legally, simply because they had misunderstood the date on which their leave expired" Yet that is precisely the kind of question that the DPP and Crown Prosecution Service will presumably have to resolve in carrying out the Solicitor-General’s view that if a migrant can genuinely show that they believe themselves to be legally present, the public interest test would apply. Why then can the courts not be relied on to make appropriate decisions on reasonable belief, as called for in this amendment, and thus put a defence against this new offence in the Bill, debated and agreed by Parliament When the question was raised in the Commons debate about why this new offence was needed at all, since it appeared that the police were not seeking this new power and had not found any gap in their ability to deal with drivers who do not have regular status, the Solicitor-General, replying for the Government, said that there was, "a loophole involving people who are unlawfully here … who are driving with foreign-issued licences".—[Official Report, Commons, Immigration Bill Committee, 3/11/15; cols. 307-08.] For my benefit and to get it on the record, could the Minister spell out in detail what the existing problem is in relation to people who are here unlawfully and who drive with foreign-issued licences, as opposed to those here unlawfully but driving with British driving licences or no driving licence at all, and which can be resolved only with the creation of this new offence? It would also be helpful if the Minister in his response—I hope it will be favourable but am not too sure of that—could place on record the Government’s assessment of the extent to which this new criminal offence of driving a motor vehicle while not lawfully resident in the United Kingdom will reduce the number of people not lawfully resident in the United Kingdom, and the basis on which that conclusion has been reached. I beg to move.