Recommendation 6

HM Government · verbatim extract Rejected

We would start by reaffirming the intention of these new offences to enable earlier, faster disruption of organised immigration crime. This criminality puts vulnerable people, the very groups to which the report refers, at risk of exploitation and harm. We recognise and support the sentiment behind the report’s recommendations to protect vulnerable groups and uphold the UK’s international commitments. We want to highlight that this is also the purpose of the new offences. By enabling faster, earlier disruption, the aim is to break the smuggling gangs’ business models and protect those they exploit, preventing the harm they cause. The offences have been specifically tailored to ensure an approach that is both proportionate and effective in achieving their aims. They will sit within wider criminal justice structures that are in place to account for the potential vulnerability of suspects. We set out in further detail below the risks that some of the recommendations would pose to their effectiveness. Recommendations in paragraph 51(a) and 53(a) (clauses 13, 14 and 16) propose to amend the scope of the offences to ensure they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain. 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. The recommendation in paragraph 53(b) seeks to replace clause 16(2) with a requirement that the person intended the information to be useful in organising or preparing for a relevant journey, or was reckless as to whether the information would be useful to a person organising or preparing for a relevant journey. Clause 16(2) specifies the circumstances when a person commits the collecting information offence (as set out in clause 16). There must be evidence of reasonable suspicion that a record or document or any information contained in it, will be used by the individual in organising or preparing for a relevant journey. There must be something about the circumstances in preparing or organising that journey which cause a reasonable suspicion to arise to result in the offence of collecting information for use in immigration crime. This is analogous to police officers who stop and investigate individuals because they have specific reasons to suspect that a crime may be occurring. We anticipate that these circumstances may, for example, be involvement in the activity of criminal gangs. As with the offences in clause 13 and 14, narrowing the scope of this offence to prove intent or reckl