Source · Select Committees · Human Rights (Joint Committee)
Recommendation 3
3
Rejected
In relation to clauses 13 and 14: a.
Recommendation
In relation to clauses 13 and 14: a. The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain. (See Amendments 1 and 2, Annex). b. The mental threshold should be changed from “knows or suspects” to “intends” that, or is “reckless” as to whether, the relevant article is to be used in connection with the commission of the specified immigration offences. (See Amendments 3 and 4, Annex). c. The defence of “reasonable excuse” ought to explicitly provide that it must be interpreted compatibly with Article 31 of the Refugee Convention, Article 5 of the Smuggling Protocol, and section 26 of the Council of Europe Convention Against Trafficking. (See Amendments 5 and 6, Annex) 60 d. The offences in clauses 13 and 14 should be added to the existing defence in section 31 of the Immigration and Asylum Act 1999. This would, in certain circumstances, provide a defence to refugees who come to the UK directly from a country where their life or freedom was threatened. (See Amendment 7, Annex). (Recommendation, Paragraph a)) (Recommendation, Paragraph 51)
Government Response Summary
The government rejects the recommendations to amend the scope of offences to require financial gain and to change the mental threshold, arguing these changes would undermine operational effectiveness and create loopholes for criminal networks.
Government Response
Rejected
HM Government
Rejected
Introducing a requirement for financial or material gain would severely undermine the purpose of the new offences. These clauses are specifically drafted to enable early disruption of criminal enterprises, often before any financial benefit can be traced or substantiated. Requiring proof of gain would allow sophisticated criminal networks to operate with impunity during preparatory stages, which would undermine the fundamental objective of the new offences: to intervene earlier in organised immigration crime. In addition, many smuggling operations are loosely organised and compartmentalised, with financial transactions deliberately obscured. Requiring evidence of gain would create loopholes, allowing actors involved in coordination, logistics, or recruitment to escape liability merely because financial benefit has not yet materialised or is difficult to prove. The current drafting of the provision is therefore essential to ensure operational effectiveness while remaining proportionate to the serious criminality it is intended to disrupt. The recommendations in paragraph 51(b) in respect of clauses 13 and 14 seek to amend the mental threshold from ‘knows or suspects’ to ‘intends’ that or is ‘reckless’ as to whether, the relevant article or information is to be used in connection with the commission of the specified immigration offences. This proposal would change the mens rea threshold, thereby narrowing the scope of the offence and making it more difficult to prosecute those who commit organised immigration crime. Smuggling networks are highly adaptable and already deliberately obscure who is involved and in what capacity to evade justice. This is particularly true in the earlier, preparatory stages. Indeed, that is why the new offences are specifically designed to strengthen the tools to disrupt this stage of the criminal activity. Changing the threshold from “knows or suspects” to “intends” or “is reckless” would result in a higher evidentiary standard that criminals would exploit as a loophole to evade justice. The current test of knowledge or suspicion is already a subjective one, requiring an assessment of the individual’s actual state of mind. It is not a vague or loose standard. Furthermore, proof of intent is particularly difficult in cases involving individuals such as couriers, facilitators or intermediaries who may deliberately obscure their role or act at a step removed from the journey itself. The proposed change would create legal uncertainty and significantly hamper operational agility.