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


1.In recent years there has been an increased concern that people are entering the UK in small boats by crossing the Channel from France. News outlets have consistently reported that in 2021 more individuals have attempted to cross the Channel than in previous years.1 The United Nations High Commissioner for Refugees has suggested that this increase is a result of the significant reduction and air and freight traffic during the COVID-19 pandemic.2 Most of those individuals who arrive by boat do go on to claim asylum (98%).3

2.The Channel is the busiest shipping route in the world and those making the journey crossing often do so aboard vessels that are small, cramped and not seaworthy. The route is an incredibly dangerous one and there have been too many unfortunate cases where individuals, including children, have lost their lives during their journey. Every loss of life in the Channel is tragic and it should be a pressing priority for Government that further deaths in the Channel are prevented.

3.The Government’s New Plan for Immigration notes that small boat crossings, and irregular entry more generally, is being “facilitated by serious organised criminals exploiting people and profiting from human misery”, and one of the aims of the Nationality and Borders Bill (NBB) is to “break the business model of people smuggling networks.” To this end Part 3 of the Bill, which is the focus of this report, contains various enforcement powers in relation to ships and vehicles and modifies existing immigration offences.

The Nationality and Borders Bill

4.The NBB was introduced to the House of Commons on 6 July 2021 and completed Committee Stage in the Commons on 4 November 2021. Dates for Report Stage and Third Reading are yet to be announced.

5.The NBB covers wide-ranging matters including (i) nationality (Part 1); (ii) treatment of refugees and asylum seekers (Part 2); (iii) enforcement of immigration law (Part 3); (iv) age assessments (Part 4); (v) modern slavery (Part 5); and miscellaneous provisions (Part 6). The provisions in the Bill give rise to several human rights considerations and, consequently, this is the second report from our Committee—following Legislative Scrutiny: Nationality and Borders Bill (Part 1)–Nationality—on the proposed legislation. This Report focuses on the enforcement provisions in Part 3 of the Bill. Our scrutiny of other aspects of the Bill is ongoing.

6.Part 3 of the Bill would:

7.In this Report we have used the numbering of provisions in the Bill as amended in Committee. Part 3, therefore, includes clauses 39 to 47.4

Human Rights in issue

8.The provisions in Part 3 of the Bill engage several human rights in the European Convention on Human Rights (ECHR) and other international human rights treaties that bind the UK, including:

a)the right to life (Article 2 ECHR and Article 6 of the International Covenant on Civil and Political Rights (ICCPR));

b)the right to liberty (Article 5 ECHR);

c)the right to an effective remedy (Article 13 ECHR);

d)the right of access to justice in immigration decisions (Art 13 ICCPR)

e)the prohibition of slavery, including the obligation to protect victims of human trafficking or slavery and to investigate and prosecute the perpetrators (under Article 4 ECHR, Article 8 ICCPR, the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children, supplementing the UN Convention against Transnational Organised Crime (UN Palermo Protocol));

f)the protection of refugees as set out in the Convention relating to the Status of Refugees 1951 (Refugee Convention);

g)the principle of non-refoulement, whereby a person cannot be returned to a country where they face a real risk of human rights breaches, contrary to the Refugee Convention, as well as Articles 2 (right to life), 3 (prohibition on torture and inhuman and degrading treatment) and 4 (prohibition on slavery) ECHR;

h)the prohibition on the collective expulsion of aliens (Article 4 of Protocol 4 ECHR (A4P4) as well as the need for individual decision-making to prevent a risk of refoulement under the Refugee Convention and Articles 2, 3 and 4 ECHR);

i)the duty to make the best interests of the child a primary consideration in decision-making (Article 3 of the UN Convention on the Rights of the Child (CRC)), and

9.The UK is also bound by various other international treaties that apply in the context of safety of life at sea, including:

a)the International Convention for the Safety of Life at Sea 1974 (SOLAS) (as amended),

b)the International Convention on Maritime Search and Rescue 1979 (SAR) (as amended),

c)the UN Convention on the Law of the Sea 1982 (UNCLOS), and

d)the International Convention on Salvage 1989 (Salvage Convention).

Our Inquiry

10.On 26 July 2021, we published a call for written evidence for individuals and organisations to respond to the questions in the Terms of Reference, to which we received 61 submissions. Alongside this, we also published an online survey, promoted on our website and through our Twitter account, so we could hear a wider range of views on the human rights implications of the Bill. Our survey closed on 17 September 2021 and we received 84 responses to the survey. An analysis of those responses is in Appendix 2 below. We have also held oral evidence sessions on the Bill, including one specifically considering Part 3 on 20 September 2021. We are grateful to all who have provided evidence to our inquiry.

2 Oral evidence taken before the Home Affairs Select Committee on 30 September 2020, HC 705 (2019–21), Q230 [Rossella Pagliuchi-Lor]

3 Oral evidence taken before the Home Affairs Select Committee on 3 September 2020, HC 705 (2019–21), Q29 [Abi Tierney]

4 Nationality and Borders Bill [Bill 187 (2021–2022)] as amended in Public Bill Committee

Published: 1 December 2021 Site information    Accessibility statement