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

2Small boat crossings in the English Channel

Small boat crossings in the Channel

11.In recent years there has been an increased concern that people are entering the UK by crossing the Channel in small boats. The Government’s March 2021 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”.5 The Channel crossing is a very dangerous route and small boat crossings endanger the lives of those individuals on board, the Border Force officials and organisations, such as the RNLI, who rescue those boats. As the Joint Council on the Welfare of Immigrants noted in their evidence to this inquiry, “The Channel is the busiest shipping route in the world and the migrants seeking to make irregular crossings of it are invariably forced to do so on small crafts which place them automatically at severe risk and in need of assistance.”6

12.The danger of the route is demonstrated by the tragic stories of individuals who have lost their lives whilst making the crossing.7 Whilst it is difficult to give a precise number who have lost their lives, the Institute of Race Relations has documented over 290 deaths at the British borders with France and Belgium since 1999 (this figure includes people who were not travelling to the UK by small boat).8 We heard that many asylum seekers make dangerous journeys because they see no other option but to leave their home country. We also heard that asylum seekers rarely have any choice as to their destination or their means of travel, although that may not be the case for all asylum seekers. For example, we received oral evidence from Peter, an Ambassador from the VOICES Network, who told us how he had been brought to the UK on a small boat across the Channel. He explained that “Me coming to the United Kingdom was never planned, so I never knew I was going to end up in the United Kingdom. I never knew I was going to be on a boat with so many people for almost five hours in deep waters, which I was really scared of. It was never actually planned for me.”9

13.Difficulty has arisen in determining whether UK or French authorities are responsible for assisting small boats in the Channel, with some suggesting France is not doing enough to stop unseaworthy small boats leaving French shores.10 The narrowest part of the Channel, the Dover Strait, is just 21 miles and consists of both British and French territorial waters.11 In the Dover Strait, which most small boats cross, there are no international waters between France and the UK. This means that as soon as vessels leave French waters, they enter UK waters.12 However, the two countries have divided the Channel into search and rescue zones. If a small boat is within a country’s search and rescue zone, that country is responsible for assisting the boat.13 It is beyond this Committee’s remit to consider the complexities of Anglo-French relations in this area, instead this report will focus on the nature and territorial scope of the UK’s human rights obligations in relation to small boats crossing the Channel.

14.Of those people making small boat crossings who reach the UK, data shows that a majority go on to claim asylum. In oral evidence to the Home Affairs Select Committee on 3 September 2020, Abi Tierney, the Director General of UK Visas and Immigration (UKVI), stated that of the roughly 5,000 people who had crossed the English Channel in small boats from January to September 2020, 98% claimed asylum.14

15.The Government’s New Plan for Immigration shows that since 2018 the proportion of individuals arriving in the UK in small boats as compared to other modes of entry has increased significantly:15

Recent increase in small boat crossing in the Channel

Source: NEW PLAN FOR IMMIGRATION – Policy Statement (publishing.service.gov.uk) at page 7

16.Prior to 2016, very few people arrived in the UK in small boats having crossed the Channel. Between July 2014 and May 2016 Home Office data states that there were nine confirmed incidents of migrants reaching the UK having crossed the Channel in a small vessel.16 At that time a significantly larger proportion of migrants were arriving in the UK by lorry.

17.By 2018 the Home Office reported that 539 migrants had attempted to travel to the UK by small boats in that year.17 In response to this increase the then Home Secretary declared small boat crossings a “major incident” on 28 December 2018. This resulted in the deployment of additional UK patrol vessels in the Channel and a series of coordinated actions by the UK and French authorities aimed at preventing further crossings.

18.The number of people attempting to enter the UK in small boats has continued to grow. The New Plan for Immigration states that in 2020, around 8,500 people were detected attempting to enter the UK clandestinely by small boat—up from around 1,800 in 2019.18 There is currently no official statement on the number of people that have entered the UK in small boats in 2021, however, the Explanatory Notes to the Bill state that in the first six months of 2021, over 5,900 people crossed the Channel in small boats.19 News outlets have provided running tallies of the number of Channel migrants detected in 2021, said to be based on data given to them by the Home Office. For example, on 10 October 2021, the BBC reported that more than 18,000 people have made the crossing from France to England in small boats so far this year.20

19.The UK is not the only country dealing with the unauthorised arrival of migrants by boat. Greece, Italy, and Spain have all received many more such arrivals in recent years. The UN reports that in 2020, Italy had around 34,000 sea arrivals, Spain 40,000, and Greece 10,000, compared to the UK’s 8,500.21

Why have the number of Channel crossings increased?

20.In an oral statement to the House of Commons on 7 January 2019, the then Home Secretary, stated that “strengthened security at the French-UK border has meant that it has become increasingly difficult for stowaways illegally to enter the UK in trucks and cars, leading to more reckless attempts by boat.”22

21.In evidence to this Committee the UK Representative to the United Nations High Commissioner for Refugees, Rossella Pagliuchi-Lor, also partly attributed an increase in Channel crossings to strengthened security at the French-UK border. She said:

I can venture a hypothesis. As I said, the overall number [of people entering the UK irregularly] has not changed. It is pretty stable. What has happened is simply that smuggling rings moved from moving people largely through trucks and other vehicles to using boats. One of the reasons is the securitisation of the border and the fact that there are far more controls on trucks and lorries than there were before. I think it has to do with Brexit. That has reduced the truck vehicular traffic. Covid has been fundamental, because for months there has been hardly any way. Of course, smuggling rings are nothing if not incredibly adaptable. They have moved their business from trucks and vehicular movement to boats, but this does not represent a change in either the nature of those who travel or the nature of the movement. It is simply from one to the other.23

Assisting small boats in the Channel

22.The overall provision of national maritime search and rescue operations and policies rests with the Department for Transport (DfT) through the Maritime and Coastguard Agency (MCA). The tasking of adequate resources to respond to maritime search and rescue, and the co-ordination of that response, is the responsibility of the MCA through HM Coastguard.24

23.In his evidence to the Home Affairs Select Committee, the Clandestine Channel Threat Commander, Dan O’Mahoney, explained the process for rescuing boats in the Channel:

I can tell you that there is a very well-rehearsed and very professional operation that is delivered in UK waters. It is overseen by the Maritime and Coastguard Agency because all of the migrant vessels currently are classified as in distress, because they are unseaworthy and the people operating them do not have maritime experience. So, the Coastguard Agency co-ordinates that operation. They use a combination of assets from across Government: their own aerial surveillance aircraft, a civilian drone, and you may have seen that a Watchkeeper drone is now deployed over the Channel, from Defence. They use those to identify where the migrant vessels are and to direct resources on to them.

Border Force currently have three declared assets, which are available to the Coastguard Agency to make those rescues: two coastal patrol vessels and a cutter. We have more vessels in reserve. The Coastguard Agency deploy to those vessels as a part of the safety of life at sea operation. I think it is also really important to emphasise that all of those assets that I have just mentioned are also engaged in intelligence gathering. So even before those migrant vessels arrive at the UK-France median line, we are looking at them to gather intelligence and information, as well as looking after the safety of the migrants. The same goes for when those migrants get on a Border Force vessel—we are basically looking after their welfare, but we are also looking for evidential opportunities to prosecute facilitators.25

24.The UK search and rescue effort also relies heavily on voluntary organisations, such as the Royal National Lifeboat Institution (RNLI), or independent lifeboats. Assistance from voluntary organisations is requested, and tasked, through either the Police Service or HM Coastguard who will retain ultimate responsibility for the overall incident.26

What happens when individuals arrive in the UK?

25.Individuals attempting to cross the Channel by boat are almost always picked up at sea or on beaches around Kent. They are then transported to Tug Haven, a short-term immigration detention holding facility, where they undergo a temperature check, a search and are photographed and fingerprinted so basic identity checks can take place.27 HM Chief Inspector of Prisons (HMCIP) have said the facilities at Tug Haven “resemble a building site”.28 Following this initial processing individuals are generally transported to the Kent Intake Unit (KIU) or the overflow site, Frontier House, in Folkestone. An initial interview will then take place.29 Individuals granted immigration bail are then released and transferred to short-term Home Office accommodation. Those thought to pose a high risk of harm or who did not claim asylum may be transferred to an immigration removal centre. HMCIP reported that during an inspection in 2020 most individuals processed at the KIU were moved from there to another short-term holding facility, Yarl’s Wood.30

Operation Sovereign Borders the approach to boat crossings in Australia31

In September 2013 the Australian Government introduced Operation Sovereign Borders to ensure that “no one who arrives illegally by boat will settle in Australia”.32 This policy was introduced after more than 50,000 people had travelled illegally to Australia between 2008 and 2013. During this period, according to the Australian Government, more than 1,200 people had drowned attempting to reach Australia by sea.33

This “zero tolerance” policy included turning back boats in international waters and detaining people stopped at sea in offshore detention in camps in Papua New Guinea and the island of Nauru at the expense of the Australian government.

The Australian Government’s policy is to turn back boats ‘where safe to do so’. The tactics adopted include ‘turnbacks’, where vessels are returned to just outside the territorial seas of the country of departure (e.g. Indonesia), and ‘takebacks’, where Australia works with a country of departure (e.g. Sri Lanka and Vietnam) to return those aboard, either by plane or an at-sea transfer. As of September 2018, 33 vessels have been intercepted under Operation Sovereign Borders, with 827 people returned to their country of departure or origin.34

The Australian Government have stated that no lives have been lost during return operations under Operation Sovereign Borders.35 However, the Kaldor Centre for International Refugee Law have highlighted reported risks to both the life and safety of passengers, crew and Australian Navy personnel and this Committee were told there were reported deaths of some individuals who had been left adrift at sea.36 Reported risks have included passengers going overboard and acts of sabotage. Some people returned by Australia to their countries of origin have reportedly faced torture and imprisonment.37

On 11 November 2020 the Home Affairs Select Committee heard from Professor Natalie Klein from the University of New South Wales who said that although the number of people arriving in Australia clandestinely by boat had reduced under “Sovereign Borders”, people had found alternative ways of entry and the number of people arriving by air—Covid aside—had increased significantly.38

Pushbacks from Italy to Libya

The stretch of the Mediterranean Sea between North Africa and Italy and Malta, referred to as the central Mediterranean route, continues to be among the busiest and deadliest migration routes in the world. In 2016, the number of migrants detected on the route peaked at 181,436. This fell to 119,369 in 2017,39 and continued to fall to 11,471 in 2019. In 2020 the number increased again to 34,154.40

In 2020, 1,550 refugees and migrants were reported dead or gone missing in irregular movements at sea from West and North Africa to Italy, Malta and Spain. 524 people died trying to cross the sea from Libya and a further 201 people, drowned trying to cross the sea from Tunisia.41

In 2008 Italy and Libya signed a Treaty on Friendship, Partnership and Cooperation aimed at preventing irregular migration from Libya to Italy. Under that agreement, in 2009 Italy began intercepting vessels in the Mediterranean Sea and returning them to Libya. Under the agreement Italy transferred three patrol boats to Libya on May 14, 2009 to be jointly operated by Libyan and Italian authorities.42 In February 2017 Italy and Libya concluded a new memorandum of understanding. Under the new agreement, Italy provides support to the Libyan Coast Guard (LCG), which intercepts migrant boats trying to cross from Libya to Italy.43

There have been a number of high-profile incidents in the Mediterranean that have led to claims being brought against Italy. On 6 May 2009 the Italian Revenue Police and the Coastguard intercepted three vessels carrying approximately 200 people and returned them to Tripoli approximately 35 nautical miles south of Lampedusa. A group of eleven Somali nationals and thirteen Eritrean nationals, later brought claim against Italy in the European Court of Human Rights (ECtHR). Hirsi Jamaa v Italy is discussed in more detail below.

There is currently a case against Italy pending before the ECtHR, SS and others v Italy, relating to an incident on 6 November 2017, in which the Libyan Coast Guard intercepted an NGO vessel attempting to rescue 130 migrants from a sinking dinghy. At least twenty people on board died. Survivors were returned, or “pulled back”, to Libya, where it is alleged that they endured detention in inhumane conditions, beatings, extortion, starvation and rape. The applicants, 17 survivors of the incident, claim Italy are responsible for the human rights violations given that the Libyan vessel was donated by Italy and the intervention was partly coordinated by the Maritime Rescue and Coordination Centre (MRCC), an Italian Government agency.44

Current Government policy regarding small boats in the Channel

26.On 9 September 2021 it was reported that the Home Secretary had “ordered officials to rewrite the UK’s interpretation of maritime laws to allow Border Force to turn small boats around, forcing them to be dealt with by French authorities.”45 Forcing boats to turn around is commonly referred to as “pushbacks”. Similar tactics have been used in countries including Australia, Greece and Italy. The approach to boat crossings in Australia and Italy is discussed below.

Are pushback tactics currently being used in the Channel?

27.On 22 September 2021 the Home Office Permanent Secretary, Matthew Rycroft CBE, told the Home Affairs Select Committee that pushback tactics had not yet been deployed. He added that he could not confirm when the tactics would be deployed, but they would only be used when “all the circumstances are in place for them to be deployed in a safe and legal way”.46 The Permanent Secretary also refused to clarify the legal basis for the tactics. In a letter to the Committee dated 21 October 2021, the Permanent Secretary wrote:

I have since been advised that I must not waive legal professional privilege, so I am unable to say more than that the Government is satisfied that the maritime tactics it has developed are lawful.47

28.Although pushback tactics do not appear to have been adopted yet, Lucy Moreton, Professional Officer at the Immigration Services Union, told the Public Bill Committee that the announcement on 9 September 2021:

[H]ad the unfortunate impact of endangering both border officers and migrants because suddenly migrants feared that they were going to be pushed back, even though they are in circumstances where they never would be—they are vulnerable, the vessel is vulnerable, it has vulnerable people in it and it is not in the right bit of the Channel. Because they are frightened of being approached by border officers, they are less willing to be rescued in circumstances where they deeply need rescuing. That was most unfortunate.48

Removal to safe third countries

29.The Government’s intention to pushback boats in the Channel would result in the individuals traveling in those boats being returned to France. Under an EU law called the Dublin III Regulation, asylum seekers in EU countries can in some circumstances be transferred to the first EU member state in which they claimed asylum after leaving their origin country. However, on 31 December 2021, when the Brexit transition period ended, the UK ceased to be able to avail itself of EU laws such as the Dublin III Regulation.

30.To maintain the option to return an asylum seeker to their first EU country of entry the UK would have to enter into agreements with either individual member states, or with the EU as a whole. Without such agreements, the UK will find it difficult to transfer asylum seekers to EU countries.49

5 HM Government, New Plan for Immigration: Policy Statement, (March 2021), page 7

6 Joint Council for the Welfare of Immigrants (NBB0053)

8 Institute for Race Relations, Deadly crossings and the militarisation of Britain’s borders, 25 November 2020

9 Q3

11 Insight: Migrants crossing the English Channel, House of Commons Library, 4 November 2019

12 Is turning back migrants at sea compatible with international law?, House of Commons Library, 13 September 2021

13 Insight: Migrants crossing the English Channel, House of Commons Library, 4 November 2019

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

15 HM Government, New Plan for Immigration: Policy Statement, March 2021, page 7

17 The last quarter of 2018 saw a four-fold increase in attempts by migrants to enter the UK by this method compared with the first nine months of the year. The Home Office reported that of the 539 migrants who attempted to travel to the UK on small boats in 2018, 434 of whom made their attempts in the last three months of the year. Independent Chief Inspector of Borders and Immigration, An Inspection of the Home Office’s response to in-country clandestine arrivals (‘lorry drops’) and to irregular migrants arriving via ‘small boats’ (May 2019 - December 2019), November 2020

18 HM Government. New Plan for Immigration: Policy Statement, March 2021, page 7

21 Migration Observatory, ‘Q&A: Migrants crossing the English Channel in small boats’, accessed 2 July 2021

22 HC Deb, 7 January 2019, col 86

24 Maritime and Coastguard Agency, Strategic Overview of SAR in the UK, last updated 5 November 2021

25 Oral evidence taken before the Home Affairs Select Committee on 3 September 2020, HC 705 (2019–21), Q14 [Dan O’Mahoney]

26 Maritime and Coastguard Agency, Strategic Overview of SAR in the UK, last updated 5 November 2021

28 Ibid para 1.16

31 It should be noted that Australia are not signatories to the European Convention of Human Rights (ECHR) or the Council of European Convention on Action against Trafficking (ECAT). They are, however, signatories to the various international maritime treaties described further below and other international human rights treaties.

32 Home Affairs Select Committee (CHA0060)

33 Home Affairs Select Committee (CHA0060)

34 Andrew & Renata Kaldor Centre for International Refugee Law, Factsheet: Turning back boats, last updated 2019, page 1

35 Home Affairs Select Committee (CHA0060)

36 Q2

37 Andrew & Renata Kaldor Centre for International Refugee Law, Factsheet: Turning back boats, last updated 2019, page 2

38 Oral evidence taken before the Home Affairs Select Committee on 11 November 2020, HC 705 (2019–21), Q442 [Professor Natalie Klein]

44 SS and others v Italy (Application No. 21660/18). Global Legal Action Network, Legal action against Italy over co-ordination of Libyan Coast Guard pull backs, accessed 17 November 2021

46 Oral evidence taken before the Home Affairs Select Committee on 22 September 2021, HC 625 (2021–22), Q265 [Matthew Rycroft CBE]

48 Nationality and Borders Bill Committee, 21 September 2021, col 30

49 Even if the UK secured agreements with individual member states, the UK would still have an obligation to conduct individual assessments for returns. The UK would need to satisfy itself not only that an individual would not face human rights abuses in the relevant EU member State, but also that they would not later be returned to a country where they faced a real risk of such treatment, contrary to Article 2, 3 or 4 ECHR and the Refugee Convention. This is known as the principle against onwards refoulement and is discussed in further detail below. See also Sharifi and Others v Italy and Greece (Application No. 16643/09)

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