Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement Contents


Part 3 of the Government’s Nationality and Borders Bill will make a number of changes to immigration law and enforcement. The Government wants to deter refugees from seeking asylum in the UK having arrived through “irregular” routes. The legislation aims to do so, in part, by criminalising those that arrive in the UK through such “irregular routes” along with making it an offence to assist a person who arrives irregularly. The legislation and government policy together are also focused on deterring refugees travelling across the Channel to the UK on small boats by enabling maritime enforcement—including the ability to turn boats around at sea—known as “pushbacks”. The legislation will also make changes to immigration removals and bail, increasing the statutory notice period for a removal while adding matters to be borne in mind when making decisions on bail.

Article 2 of the European Convention on Human Rights (ECHR), which is incorporated into UK law through the Human Rights Act 1998, protects the right to life. The UK is required to adopt laws and practices to safeguard the right to life; this includes the safety of lives at sea. The Channel crossing is a very dangerous route and small boat crossings already too often end in loss of life. The Government’s legislation and policy intentions with regard to pushbacks at sea are likely to increase the danger of these crossings whilst failing to deter those who make the journey and the people smugglers who profit from them. We do not see how the Government’s proposals as they stand are consistent with our human rights obligations. We recommend that the Bill is amended so that maritime enforcement cannot be imposed on any vessel that is not seaworthy or where there could otherwise be a risk to the safety of life and well-being of those onboard. Rather than pursue their policy on pushbacks, the Government should instead do everything it can to prevent more individuals losing their lives at sea.

We have further concerns connected to the maritime enforcement sections of the Bill, including the following:

The Bill would also make it a criminal offence to arrive in the UK illegally. Whilst some legal routes to entry, such as through a resettlement scheme, do exist, these are extremely limited. The new offence is clearly inconsistent with our obligations under the United Nations Refugee Convention, including Article 31, which prohibits the penalisation of refugees for unauthorised entry. The Bill would also make it a criminal offence to facilitate illegal arrival into the UK, potentially criminalising those who rescue migrants from the Channel and bring them to the UK, once again in contravention of the right to life under Article 2 of the ECHR.

The Bill also proposes changes to immigration detention and removals. We welcome the statutory guarantee of at least five working days’ notice before a person is removed, an increase on the 72 hours currently guaranteed in policy guidance, and the end of the use of ‘removal windows’. These changes provide greater protection for the right of access to justice. They also improve human rights protections by reducing the chances of unjustified removal. However, the Bill should be amended to make plain that whenever notice of removal is provided, it must be sufficient to guarantee the right to access justice.

The Bill makes changes to the law governing the grant of immigration bail, adding additional matters to which Home Office decision makers and the First-tier Tribunal must have regard when making their decision on bail. These changes increase the risk that immigration detention will be used, and prolonged, where it is not necessary or proportionate. As such, we recommend that they are removed from the Bill.

Published: 1 December 2021 Site information    Accessibility statement