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

3Maritime enforcement and human rights

31.Maritime enforcement action in relation to boats at sea raises a number of different human rights issues, including: (i) the right to life, which is protected by Article 2 ECHR and Article 6 ICCPR, as well as specific rules relating to the safety of life at sea under UNCLOS, SAR and SOLAS; (ii) the protection of victims of human trafficking or slavery (under Article 4 ECHR, Article 8 ICCPR, ECAT and the UN Palermo Protocol); (iii) the principle of non-refoulement and the protection provided by the Refugee Convention (as well as Articles 2 and 3 ECHR); and (iv) the prohibition on collective expulsions (A4P4 ECHR) and the need for an individual assessment. However, overall we have not been provided with adequate detail of the Home Office’s analysis as to the compatibility of the proposed maritime enforcement powers and pushback policy with human rights standards.

32.The Home Office’s ECHR Memorandum does not directly address the compatibility of the maritime enforcement provisions in Part 3 of the Bill with human rights, including the right to life or the prohibition on torture (Articles 2 and 3 ECHR). Indeed, there has been much speculation as to the legality of proposed maritime enforcement activity.50 However, within that Memorandum more generally, the Home Office does consider how Article 3 ECHR and the principle of non-refoulement could apply to the removal of an asylum seeker to a safe third country (at paragraphs 14–15), albeit in relation to provisions in Part 2 of the Bill and not pushbacks.

Right to Life: Duty to protect and save lives at sea

33.Article 2 ECHR provides “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally [ … ]”. Similar wording is found in Article 6 of the ICCPR.51

34.The right to life contains three obligations—(i) a positive obligation on the State to take appropriate steps to safeguard the lives of those within its jurisdiction; (ii) a prohibition of intentional deprivation of life; and (iii) a procedural obligation to carry out an effective investigation into alleged breaches of the right to life.

35.The positive obligation under Article 2 ECHR includes a duty on the State to take preventive operational measures, where the presence of a risk requires such action. Whilst this is an obligation of means, not of result, this obligation requires both an assessment of the nature and level of risk, as well as adequate preventive operational measures. It requires the authorities to do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. Such a situation could, for example, arise where a refugee imperils their own life through fears of a pushback by Immigration Officers.52

36.However, Article 2 ECHR does not guarantee to every individual an absolute level of security in any activity in which the right to life may be at stake, in particular when the person concerned bears a degree of responsibility for having exposed themselves to unjustified danger. That said, the European Court of Human Rights (ECtHR) has held that Article 2 may imply in certain well-defined circumstances a positive obligation on the part of the authorities to take preventive operational measures to protect an individual from themselves. In particular, this obligation can arise where an individual imperils their own life in view of State agents, including where that threat is an emotional reaction induced by the State agents’ actions.53

37.The ECtHR has held that the positive obligations under Article 2 require States to adopt regulations for the protection of people’s safety in public spaces, and to ensure the effective functioning of that regulatory framework. However, there is a choice of means for States as to how to achieve this positive obligation. The positive obligations under Article 2 ECHR mean that in the context of safety of life at sea, States need to have an adequate legislative and administrative framework in place to protect lives at sea, including checks that ships are seaworthy, and adequate systems for search and rescue operations at sea.54

38.Therefore, Article 2 ECHR positively requires the State to adopt laws and practices to safeguard the right to life. This would apply when adopting laws relevant to the safety of lives as sea, as well as in developing practices and policies relevant to the safety of life at sea, and how the authorities might react in any given case in order to ensure that the right to life and safeguarding life is given a central place in all actions.

39.The right to life also includes a prohibition on the use of lethal force by State agents. It may also be engaged where State agents fail to take all feasible precautions in the choice of means and methods, for example, when undertaking a security operation with a view to avoiding incidental loss of civilian life. This means that techniques used at sea (for example under any “pushback” or “maritime enforcement” operations) should not have the effect of causing loss of life and should be designed so as to minimise any risks to life. Article 2 ECHR does permit the use of force that is “absolutely necessary” in order, for example, to effect a lawful arrest of a person. In order for the use of force to be “absolutely necessary”, it must be strictly proportionate to the situation and circumstances. There is no margin of appreciation granted to states when considering whether the use of force was “absolutely necessary”. However, it is difficult to see how intercepting refugees in a way that would risk their lives would be “absolutely necessary” and therefore strictly proportionate.55 Significant care would need to be taken by UK authorities to ensure that the safety of the lives of those on small boats is the primary consideration in any actions taken to intercept them—and to take them to safety.

40.Article 6 ICCPR also protects the right to life. In January 2021, the UN Human Rights Committee (the body responsible for monitoring the implementation of the ICCPR) found that Italy had failed to protect the right to life of more than 200 migrants, including 60 children, who died on board a vessel that sank in the Mediterranean Sea in 2013. The Committee found that Italy had failed to respond promptly to various distress calls made by those aboard the sinking vessel.56

Duties on the master of a ship to assist those in distress at sea

41.There are internationally binding obligations, relating to the right to life, in the form of rules to protect the safety of life at sea. These include specific duties to aid those in distress at sea, as well as duties on coastal states to organise search and rescue operations.

42.As the International Maritime Organisation (IMO) guidance “Rescue at Sea: a guide to principles and practice as applied to refugees and migrants” sets out: “The Master [of a ship] has an obligation to render assistance to those in distress at sea without regard to their nationality, status or the circumstances in which they are found. This is a longstanding maritime tradition as well as an obligation enshrined in international law. Compliance with this obligation is essential to preserve the integrity of maritime search-and-rescue services.”57 For example, this obligation is reflected in the SOLAS, UNCLOS and Salvage Conventions. The obligation also extends to requirements on States to facilitate and require such action by the Master of a ship in their laws.

43.SOLAS was first developed in 1914 following the sinking of the Titanic and has since been updated and amended to continue to help promote the safety of life at sea.58 It contains minimum standards for the construction, equipment and operation of certain types of cargo and passenger ships, for which flag States are responsible. It contains an obligation on the master of a ship to assist other ships or survival craft in distress at sea.59 A similar obligation of assistance can be found in Article 10 (duty to render assistance) of the Salvage Convention 1989, which additionally requires States to adopt measures necessary to enforce such duties of assistance.60

44.Moreover, UNCLOS also provides at Article 98(1):

Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.

45.The UK currently reflects the international law ‘duty to rescue’ through the Merchant Shipping (Safety of Navigation) Regulations 2020, which require compliance with Chapter V of SOLAS, including the obligation to provide assistance to those in distress.61 Failing to comply with this obligation is a criminal offence.62

46.Not only are the Masters of all ships bound to assist those whose lives are at risk at sea, but the UK is also bound to adopt measures to ensure that this is done, both under its general human rights obligations to take positive actions to respect the right to life, as well as under specific duties under maritime law, including SOLAS and UNCLOS.

Safety of Life at Sea: SOLAS, SAR and UNCLOS

47.SOLAS also places an obligation on coastal States to watch the coast and to rescue people in distress at sea around its coasts,63 and SAR places obligations on States to ensure that arrangements are made for the provision of adequate search and rescue services in their coastal waters. SAR requires Parties to establish basic elements of a search and rescue service, including, the legal framework, the assignment of a responsible authority and the organisation of available resources. Parties are also encouraged to enter into SAR agreements with neighbouring States. In particular SAR requires States to “ensure that assistance [is] provided to any person in distress at sea … regardless of the nationality or status of such a person or the circumstances in which that person is found” and to “provide for their initial medical or other needs, and deliver them to a place of safety”.64

48.Moreover the 1982 UN Convention on the Law of the Seas (UNCLOS) also provides at Article 98(2):

Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.

49.Notwithstanding the possibility (in line with Article 25 UNCLOS) for coastal states to take measures to prevent non-innocent passage, coastal states are still obliged to establish laws and operational practices to rescue people in distress at sea, to organise search and rescue, to take all reasonable actions to protect and save lives at sea, and to legally require the masters of ships to save lives at sea.

50.The UK is bound, both under its general obligations to take positive actions to respect the right to life, as well as under specific duties under maritime law, including SOLAS, SAR and UNCLOS, to organise and deliver an effective search and rescue service to protect and save lives at sea.

Compatibility of a pushback policy with the right to life and international maritime law

51.As the Joint Council for the Welfare of Immigrants noted in their evidence, pushbacks have been known to endanger lives.65 Moreover, a policy of pushbacks would likely be incompatible with the UK’s obligations under international human rights law and maritime law:

Proposals that the UK Border Force will undertake “pushback” operations in British waters to effectuate the mass expulsion of asylum seekers pose a very serious risk to life and are like to be incompatible with obligations under international human rights and maritime law… 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. There are no international waters in the Channel, so migrants being returned under the powers being proposed in this Bill would be “pushed back” directly into French territorial waters.66

52.Médecins Sans Frontieres (MSF) said they were “alarmed by the proposed new powers for the UK Border Force to direct vessels out of UK territorial waters. Pursuing a policy of forced returns and engaging in pushback tactics is dangerous, inhumane and is in breach of international law. It puts lives at risk at sea.”67

53.The right to life is inherently engaged when people cross the Channel—a busy shipping lane, often with rough waters—in small unseaworthy vessels. This engages the responsibility of the State from which such boats embark to have taken reasonable measures to prevent people coming to harm at sea, for example by establishing a legal and operational framework to safeguard lives at sea, including by ensuring the seaworthiness of vessels, and by establishing systems to rescue anyone in distress within their search and rescue areas. Part of this includes taking reasonable measures to prevent people placing themselves (and others) in life-endangering situations, as well as to take enforcement action against those involved in human trafficking or slavery. It also engages the responsibility of any other States within whose territorial waters or search and rescue areas such boats pass to take reasonable action to save lives.

54.Under international maritime law, both UK and French authorities should cooperate to safeguard lives within the Channel and within their respective search and rescue zones. Moreover, where such boats cross into UK territorial waters and the UK search and rescue zone, it then becomes the responsibility of the UK authorities to take all reasonable actions to protect the right to life of those on board.

55.Pushbacks are known to endanger lives at sea. This is even more so when dealing with people on small, unseaworthy vessels, in a busy shipping lane, often with rough waters, without appropriate life-saving equipment, as is the case for migrants in small boats in the Channel. The obligations on the UK in such circumstances are to take all reasonable actions to save lives at sea—by establishing a legal and operational framework to ensure that those at risk at sea are rescued; by ensuring that masters of ships take action to save those in distress at sea; and by ensuring that its state agents take all reasonable steps to rescue those at risk at sea. A policy of pushbacks fails to comply with the obligations to save those in distress, contrary to the right to life and international maritime law. Moreover, pushbacks would do the opposite of what is required to save lives. Pushbacks would create a situation where state actors were actively placing individuals in situations that would increase the risk to life. Under the current conditions, we cannot see how a policy of pushbacks can be implemented without risking lives, contrary to the UK’s obligations under the right to life and international maritime law.

Protection of victims of human trafficking or slavery (Article 4 ECHR, Article 8 ICCPR, ECAT and the UN Palermo Protocol)

56.There are a number of instruments placing obligations on states to protect victims of slavery or trafficking and to investigate and prosecute those responsible for human trafficking or slavery. These protections are principally contained in Article 4 ECHR (the prohibition on slavery), Article 8 ICCPR, ECAT, and the UN Palermo Protocol.

57.These obligations on States include a positive obligation to put in place an appropriate legislative and administrative framework to combat slavery and human trafficking; a positive obligation to take operational measures to protect victims of slavery or human trafficking; and a procedural obligation to investigate and prosecute perpetrators of slavery or human trafficking.

58.These obligations will apply in respect of victims of slavery or human trafficking within the UK’s jurisdiction. This means that if there are victims or potential victims of slavery or human trafficking in UK territorial waters, or in boats that UK agents are exercising authority over, the UK authorities have duties to take steps to protect those victims (or potential victims), to ensure they are not placed in a situation where they will fall again into the hands of traffickers, and to investigate and take action against potential perpetrators.

59.We are concerned that pushbacks under the proposed maritime enforcement powers could lead to situations where victims of slavery or human trafficking are not protected and where action is not taken to adequately investigate and prosecute perpetrators of slavery or human trafficking. We therefore do not see how a pushback policy under the proposed new maritime enforcement powers can be operated in compliance with the UK’s obligations to combat slavery and human trafficking, under Article 4 ECHR, Article 8 ICCPR, ECAT and the UN Palermo Protocol.

Litigation on pushbacks – Hirsi Jamaa v Italy68

The case of Hirsi Jamaa v Italy concerned Somalian and Eritrean migrants travelling from Libya who had been intercepted at sea by the Italian authorities within the Maltese SAR zone and sent back to Libya. The ECtHR found that the applicants had fallen within the jurisdiction of Italy for the purposes of Article 1 (obligation respect human rights) of the ECHR. The applicants had been under the continuous and exclusive de jure and de facto control of the Italian authorities between the period when the Italian authorities boarded the ships and when the applicants were handed over to the Libyan authorities.

Italy was found to have violated the prohibition on torture and inhuman and degrading treatment (contrary to Article 3 ECHR) as the applicants were exposed to the risk of being subjected to ill-treatment in Libya, as well as a risk of repatriation to face ill-treatment in Eritrea and Somalia.

The ECtHR also found a violation of the prohibition on collective expulsion (A4P4 ECHR), finding that the ECHR applied to a removal to a third State carried out outside national territory as Italy had, exceptionally, exercised its jurisdiction outside its national territory in the form of collective expulsion. The transfer of the applicants to Libya had been carried out without any examination of their individual situations, in breach of A4P4 ECHR. The case also found a violation of Art 13 ECHR because the applicants had been unable to lodge their complaints and to obtain a thorough and rigorous assessment of their requests before removal.

Non-refoulement: Refugee Convention, the prohibition on torture or degrading or inhuman treatment or punishment (Article 3 ECHR & Article 7 ICCPR), the right to life (Article 2 ECHR & Article 6 ICCPR) and the prohibition of slavery

60.A number of different provisions of international human rights law prevent a State from taking action that would return a person to a country where their life or freedom would be at risk. These provisions would apply to prevent maritime enforcement actions in the Channel against refugees.69

61.Article 33 of the Refugee Convention provides that a State “shall not expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened …”. Therefore, were a refugee intercepted and returned to a country where either (i) his life or freedom would be threatened in that country; or (ii) that country would return him to another country where his life of freedom would be threatened, then this would breach the non-refoulement obligation in Article 33 of the Refugee Convention.

62.Article 3 ECHR prohibits the extradition or deportation of an individual to another State where he or she would face a real risk of being subject to torture or degrading or inhuman treatment or punishment.70 As has been found in the case of Hirsi Jamaa v Italy, a State can violate Article 3 ECHR through pushbacks at sea.71 Therefore, were the UK to return (or pushback) migrants to a country where they would either face mistreatment contrary to Article 3 ECHR, or where they would be further refouled to face mistreatment contrary to Article 3 ECHR, then any return or pushback action would itself be a breach of Article 3 ECHR. Article 2 ECHR (the right to life) also prohibits the extradition or deportation of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there.72 This prohibition could be applicable to the use of pushbacks if there was a real risk of refoulement (or more likely onward refoulement) to face the death penalty. Similarly, the prohibition on slavery (Article 4 ECHR) prohibits the return of an individual to a place where they would face a real risk of being placed into slavery or trafficked.

63.It should be acknowledged that whilst UK territorial waters border with the High Seas in some places, the issue giving rise to the changes in the Bill relates to small boats crossing the Channel between France and England where the distance is so short there are no High Seas. Although we should not rule out the possibility of, for example, Belgian territorial waters being involved, we are not, at present, focussing on the territorial waters of any States other than the UK and France. In this context, it is only appropriate to acknowledge that, at least at present, France is not known to breach routinely or systematically Articles 2, 3 or 4 ECHR, and does not routinely return people to countries where they would face persecution. Therefore, absent a slip in standards in France, the situation of any people returned there is not, currently, akin to those being returned to Libya in Hirsi Jamaa. However, the MSF evidence suggests some conditions in France that raise concerns about human rights standards for refugees, noting for example:

… our teams witnessed a violent evacuation of an informal settlement in Saint-Denis city, north of Paris. Three thousand refugees, asylum seekers and migrants were taken to temporary emergency shelters while around one thousand others, mainly Afghan asylum seekers, were left on the streets with nowhere to stay.73

64.Pushbacks to France on the information currently available, would not necessarily breach the non-refoulement obligations under the Refugee Convention or the provisions of the ECHR prohibiting return on the grounds of Articles 2, 3 or 4 ECHR. However, that may not always be the case as it will depend both on conditions in France, and on whether the French asylum system continues to be adequate to ensure against refoulement contrary to the Refugee Convention and Articles 2, 3 or 4 of the ECHR. Moreover, the need for an individual assessment still applies.

65.As has been noted above, the crucial concern with pushbacks is that they would endanger lives at sea and therefore breach the UK’s substantive obligations to protect the right to life. As the Refugee Council point out in their evidence, the concern with pushbacks is their inherent risk to life:

Whilst directing vessels in the Channel back towards France may not risk breaking international law in this respect [non-refoulement], the fact that many of the vessels are not designed for the dangerous waters in which they are travelling means that rescue must prevail over any plans to avoid allowing refugees and others to disembark on UK territory, particularly when the journey away from the UK coast increases the risks to life.74

Litigation on pushbacks – Sharifi and Others v Italy and Greece75

The case of Sharifi and Others v Italy and Greece concerned 32 Afghan nationals, two Sudanese nationals and one Eritrean national, who alleged that they had entered Italy illegally from Greece and been returned to that country immediately, with the fear of subsequent deportation to their respective countries of origin, where they faced the risk of death, torture or inhuman or degrading treatment.

The ECtHR held that there had been a violation by Italy of A4P4 ECHR (prohibition on collective expulsion) for some of the applicants, as the measures in the Italian port had amounted to collective and indiscriminate expulsions. It also held that there had been a violation by Italy of Article 13 (right to an effective remedy) combined with Article 3 (prohibition of inhuman or degrading treatment) of the Convention and A4P4 on account of the lack of access to the asylum procedure or to any other remedy in the port of Ancona.

The ECtHR further held that there had been a violation by Greece of Article 13 combined with Article 3 on account of the lack of access to the asylum procedure there and the risk of deportation to Afghanistan, where they were likely to be subjected to ill-treatment, and a violation by Italy of Article 3, as the Italian authorities, by returning these applicants to Greece, had exposed them to the risks arising from the shortcomings of Greece’s asylum procedure.

In addition, the Court reiterated that the “Dublin” system, an EU measure which determines which EU Member State is responsible for examining an asylum application lodged in one of the EU Member States by a third-country national, (or indeed any other system system) would not justify collective and indiscriminate returns, as it is for the State carrying out the return to ensure that the destination country offers sufficient guarantees in the application of its asylum policy to prevent the person concerned being removed to his country of origin without an assessment of the risks faced.

Prohibition on collective expulsions and the need for an individualised assessment

66.A4P4 ECHR provides: “Collective expulsion of aliens is prohibited”. In the context of pushbacks at sea, the ECtHR found a violation of the prohibition on collective expulsion in A4P4 in the case of Hirsi Jamaa v Italy.

67.The UK signed Protocol 4 ECHR in 1963 but has not yet ratified the Protocol. However, as the Home Office accepts, the UK is nonetheless bound by the object and purpose of this Protocol.76 The UK is moreover also bound by other international rules under the Refugee Convention and international human rights law that mean that an individualised assessment is required to ensure that a refugee is not returned to face persecution or human rights abuses, as confirmed in Sharifi v Italy and Greece. A person is a refugee under the Refugee Convention as a matter of fact rather than as a result of being found to be one by any immigration process. As Justice Studio said in their evidence, “the immediate push-back of vessels prohibits those on board from seeking asylum in the UK, and risks violating the 1951 Convention and the 1948 UNDHR”.77 While agreements between nations as to who should process asylum claims may be lawful, a failure to conduct an individual assessment of whether a State that is generally safe is in fact safe for an individual risks returning them in breach of the Convention’s requirements or in breach of their human rights. As Rossella Pagliuchi-Lor UK Representative at United Nations High Commissioner for Refugees told us:

In international law there would be a requirement to have at least an assessment, even a light assessment, to establish whether the person in question can return to any country, such as France or any other, and have access to procedures and standards of treatment, so on and so forth. There would have to be at least a light assessment to ensure not only that asylum is generally available but that it would be available to that person in particular. This is done also because there is a risk when you have this unregulated mechanism of informal pushbacks that these people end up falling between two chairs, not being admitted to the procedure in one country because they have been sent back from the other, and not being admitted to the procedure of this country because they came from the other. There is a real risk of that.

68.The Government should respect its obligations under refugee law and human rights law to undertake individual assessments of asylum seekers, as well as its obligations not to frustrate the object and purpose of Protocol 4 relating to collective expulsions. It is now 58 years since the UK signed Protocol 4 to the ECHR; the Government should act promptly to ratify it.

The rights of the child

69.It is well known that the State has a specific duty under Article 3 of the UN Convention on the Rights of the Child to ensure that “in all actions concerning children… the best interests of the child shall be a primary consideration”. The MSF evidence notes the difficult conditions facing children in France:

The unaccompanied children who arrive in France have undergone long, arduous, often traumatising journeys, during which violence is routine… Once in France they are left to fend for themselves in unfamiliar territory and with no money. They are forced to live in makeshift shelters, in camps that are regularly evicted by the police, or on the streets. These children have extremely limited access to healthcare and other support. If they don’t want to sleep rough, they must quickly get to grips with the complexities of France’s administrative procedures to be able to negotiate their way through a system that is wholly inadequate for the task.78

70.It is difficult to see how it would ever be in the best interests of the child to be subject to pushback techniques at sea. The Government should explain what action it would take in respect of children on a small boat crossing the Channel—and in particular how it would ensure that such actions respected the rights of the child as well as the human rights of all people in board.

The right to an effective remedy (Article 13 ECHR)

71.The notion of an effective remedy under Article 13 of the ECHR requires the remedy to be capable of preventing the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. The ECtHR has consistently found a breach of Article 13 in circumstances where individuals have been pushed back/returned at a border without consideration of their individual cases in circumstances where this has also violated other articles of the ECHR such as Article 2 (the right to life) and Article 3 (freedom from torture and inhuman or degrading treatment or punishment), as well as Article 4 of Protocol 4 ECHR (prohibition on collective expulsion).

72.The Court has found violations of Article 13, taken in conjunction with Article 4 of Protocol 4, in cases where the applicants, who had at least an arguable complaint under Article 2 or 3 ECHR in respect of risks they faced upon their removal, had been effectively prevented from applying for asylum and had not had access to a remedy with automatic suspensive effect.79 In other cases (i.e. where it is not alleged that there is a real risk of a violation of Articles 2 or 3 ECHR), the ECHR does not impose an absolute obligation on a State to guarantee an automatically suspensive remedy, but requires that the person concerned should have an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of his or her complaints carried out by an independent and impartial domestic forum.80

73.In order to comply with the right to an effective remedy in Article 13 ECHR in respect of an asylum seeker, the UK would need to have processes in place to undertake an examination of an individual’s personal circumstances, to take an individual decision in respect of that person, to enable that person to be able to challenge that decision, and to have a remedy with suspensive effect for potential violations of Articles 2 and 3 ECHR. The absence of those processes in the case of proposed pushbacks in the Channel is likely to risk violating Article 13 ECHR, in conjunction with other rights engaged.

Jurisdiction

74.Article 1 ECHR provides that “the High Contracting Parties shall secure to everyone within their jurisdiction” the rights and freedoms set out in the ECHR.

75.A person is within UK jurisdiction when they are within UK territory (including UK territorial waters). Moreover, a person is within UK jurisdiction when that person is within the effective control of a State actor, such as a State vessel exercising authority over a vessel/individuals at sea.

76.For example, in Medvedyev v. France, the ECtHR affirmed that the applicants (members of the crew on board a Cambodian-flagged ship on the high seas, intercepted by the French navy) fell under French jurisdiction having regard to the full and exclusive nature of the control exercised by France over that vessel on the high seas and over its crew. The Court examined the nature and scope of the actions carried out by the French officials in order to ascertain whether there was at least de facto continued and uninterrupted control exercised by France over that vessel and its crew.81

77.Similarly, in Hirsi Jamaa v Italy, the individuals were within the effective control of the Italian authorities, even when the vessel was on the High Seas and within Libyan territorial waters because the Italian authorities were exercising effective control over those individuals. The ECtHR made clear in that case that a State “cannot circumvent its “jurisdiction” under the Convention by describing the events in issue as rescue operations on the high seas”.82

78.Therefore, the ECHR and other international human rights protections would apply to individuals within UK jurisdiction, including in UK territorial waters. Moreover, were UK vessels to exercise effective control over boats in the Channel (even outside of UK territorial waters) then the ECHR would apply.

51 Article 6(1) ICCPR provides: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

52 See, for example, the case study of pushbacks from Australia, or the evidence of Lucy Moreton (see paragraph 28).

53 See for example, Mikayil Mammadov v. Azerbaijan (Application No. 4762/05). This concerned a case where the applicant’s wife, an internally displaced person, set herself on fire in protest at a forced eviction. The Court held that, in a situation where an individual threatens to take his or her own life in plain view of State agents and, moreover, where this threat is an emotional reaction directly induced by the State agents’ actions or demands, the latter should treat this threat with the utmost seriousness as constituting an imminent risk to that individual’s life, regardless of how unexpected that threat might have been. In such circumstances, if the State agents become aware of such a threat sufficiently in advance, a positive obligation arises under Article 2 requiring them to prevent this threat from materialising by any means which are reasonable and feasible in the circumstances (see especially paragraph 115 of that judgment).

54 See, for example, Leray, Guilcher, Ameon, Margye and Mad v France (Application No 44617/98), relating to the positive obligations on France under Article 2 ECHR in relation to its contribution to a search and rescue mission following the sinking of a French ship in 1979 off the coast of Spain, as well as its positive obligations concerning the checks for the standards of sea-worthiness of the vessel.

55 See paragraphs 51–55.

57 International Maritime Organisation, Unsafe mixed migration by sea, accessed 18 November 2021

58 The current version is SOLAS 1974, as amended

59 See for example, regulation 10 (Distress messages - obligations and procedures) of Chapter V (Safety of navigation) of SOLAS 1974: “The master of a ship at sea, on receiving [a signal/information] from any source that a ship or aircraft or survival craft thereof is in distress, is bound to proceed with all speed to the assistance of the persons in distress informing them if possible that he is doing so. If he is unable or, in the special circumstances of the case, considers it unreasonable or unnecessary to proceed to their assistance, he must enter in the logbook the reason for failing to proceed to the assistance of the persons in distress.” Or Reg 33: “The master of a ship at sea which is in a position to be able to provide assistance on receiving a signal from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the ship is doing so. If the ship receiving the distress alert is unable or, in the special circumstances of the case, considers it unreasonable or unnecessary to proceed to their assistance, the master must enter in the log-book the reason for failing to proceed to the assistance of the persons in distress, taking into account the recommendation of the Organization, to inform the appropriate search and rescue service accordingly”

60 Article 10 (duty to render assistance) of the 1989 International Salvage Convention provides: “ 1. Every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea. 2. The States Parties shall adopt the measures necessary to enforce the duty set out in paragraph 1.”

61 Regulation 5(2)(n)

62 Regulation 9(2)(d)

63 See, for example, Regulation 15 (Search and Rescue) of Chapter V (Safety of navigation) of SOLAS 1974: “a) Each Contracting Government undertakes to ensure that any necessary arrangements are made for coast watching and for the rescue of persons in distress at sea round its coasts. These arrangements should include the establishment, operation and maintenance of such maritime safety facilities as are deemed practicable and necessary having regard to the density of the seagoing traffic and the navigational dangers and should, so far as possible, afford adequate means of locating and rescuing such persons. (b) Each Contracting Government undertakes to make available information concerning its existing rescue facilities and the plans for changes therein, if any”

64 Chapter 2.1.10 and Chapter 1.3.2, respectively, of the Annex to SAR

65 Joint Council for the Welfare of Immigrants (NBB0053): “The risk to life under circumstances where a migrant vessel is left adrift while state actors refuse to provide the assistance required in enormous… There have been thousands of … deaths associated with “pushback” operations in the context of other European countries… An investigation carried out by the Guardian found that in just the last two years, European countries were responsible for “pushing backing” up to 40,000 migrants from their territorial waters, linked to the deaths of 2,000 people. In the circumstances, the policy would risk implicating border officials in civil liability under the right to life, Article 2 of the European Convention on Human Rights”. Moreover, as Freedom from Torture (NBB0041) told us: “Over the last 20 years, 300 people including children have lost their lives whilst trying to cross the Channel in small boats. The recent death of an Eritrean refugee in the Channel in August 2021 highlights the continued risk to life that small boat crossings pose. In the absence of widely accessible safe and legal routes to protection, and in the context of an evolving humanitarian crisis in Afghanistan it is not unreasonable to predict that maritime arrivals will continue to be one of the only ways for refugees to enter the UK for years to come.”

66 Joint Council for the Welfare of Immigrants (NBB0053)

67 Sophie McCann (Advocacy Officer at MSF UK) (NBB0061)

68 Hirsi Jamaa and others v Italy (Application no. 27765/09)

69 See, for example, Justice Studio (NBB0034), at paragraph 3.3 “By returning vessels, potential asylum seekers not only risk being denied the right to make and process their claim, but may also face human rights abuses, including torture and slavery, upon their return to other third countries, which could, if not managed correctly, also lead to repatriation to their country of origin. The UK must therefore consider the role that they would play when returning vessels… as they run the risk of becoming complicit in the human rights abuses that may take place in these safe countries.”

70 Article 7 ICCPR contains a similar prohibition, as does the UN Convention Against Torture (UNCAT)

71 In Hirsi Jamaa and others v Italy (Application no. 27765/09), the ECtHR found that Italy had violated Article 3 ECHR by pushing the applicants back to Libya, as they were exposed to the risk of being subjected to ill-treatment in Libya, as well as a risk of ill-treatment in countries to which they would be refouled (Eritrea and Somalia).

72 See, for example, Al Nashiri v. Poland (Application No. 28761/11); and F.G. v. Sweden (Application No. 43611/11). Article 6 ICCPR also contains similar provision

73 Sophie McCann (Advocacy Officer at MSF UK) (NBB0061)

74 Refugee Council (NBB0021)

75 Sharifi and Others v Italy and Greece (Application No. 16643/09)

76 Article 18 of the Vienna Convention on the Law of Treaties 1969 provides: “[A] State is obliged to refrain from acts which would defeat the object and purpose of a treaty when…it has signed the treaty”. See also the Home Office reply to queries from JCHR officials NBB0073 in which it states: “The Home Office accepts that as a result of the Vienna Convention on the Law of Treaties (“VCLT”), Article 18 and the UK’s signature of Protocol 4 in 1963, the UK is obliged to refrain from acts which would defeat the object and purpose of Article 4 of Protocol 4. The Home Office observes that the Bill sets out proposed powers. The Home Office intends to use these powers in a way that is compatible with all of the UK’s international obligations, and consideration will be given whether, consistent with operational sensitivities, a policy can be published in due course.”

77 Justice Studio (NBB0034). The 1948 UNDHR is the Universal Declaration of Human Rights

78 Sophie McCann (Advocacy Officer at MSF UK) (NBB0061)

79 See for example, M.K. and Others v Poland (Application Nos 40503/17, 42902/17 and 43643/17); Sharifi and Others v Italy and Greece (Application No. 16643/09); Hirsi Jamaa and others v Italy (Application no. 27765/09). Although note the differing view in NS and NT v Spain (Application Nos 8675/15 and 8697/15) that the applicants did not benefit from the protections in Article 13 and Article 4 of Protocol 4, given that they had placed themselves in an unlawful situation by using force to cross into Melilla as part of a large group.

80 See for example, Moustahi v France (Application No. 9347/14)

81 Medvedyev and Others v. France (Application No. 3394/03). The applicants, crew members of a cargo ship registered in Cambodia and intercepted off the Cape Verde islands by the French navy under suspicion of transporting large quantities of drugs, were confined to their quarters under military guard until the ship’s arrival in Brest. The Court found that as France had exercised full and exclusive control over the ship and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants had been effectively within France’s jurisdiction for the purposes of Article 1 of the Convention.

82 Hirsi Jamaa and others v Italy (Application no. 27765/09)) See in particular, paragraph 79. The applicants, a group of Somali and Eritrean nationals, who had been attempting to reach the Italian coast on board three vessels, were intercepted at sea by Italian Revenue Police and Coastguard ships, transferred on to Italian military ships and taken back to Libya. Reiterating the principle of international law stating that a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying, the Court rejected the designation “rescue on the high seas” used by the Government to describe the events, and attached no importance to the allegedly low level of control exercised over the applicants by the agents of the Italian State. Indeed, the whole series of events had occurred on board Italian military ships, with crews made up exclusively of national servicemen. From the time of their arrival on board those ships until their handover to the Libyan authorities the applicants had been under the continuous and exclusive de jure and de facto control of the Italian authorities.




Published: 1 December 2021 Site information    Accessibility statement