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

4Maritime enforcement powers in the Nationality and Borders Bill

The current law

79.Under the Immigration Act 1971, an immigration officer, a police officer, or an enforcement officer can exercise certain powers over ships within UK territorial waters, in relation to UK-flagged ships, ships without nationality, foreign ships or ships registered under the law of a British Crown dependency or overseas territory.83 However, authorisation from the Secretary of State is required before an immigration officer, a policeman, or an enforcement officer exercises those powers in relation to a foreign ship, or a ship registered under the law of a British Crown dependency or overseas territory.84 Such authority may only be given in relation to a foreign ship if UNCLOS permits the exercise of those powers in relation to that ship.85

80.Where an officer has reasonable grounds to suspect that a specified immigration-related criminal offence is being, or has been, committed or the ship is otherwise being used in connection with the commission of an offence, they may: stop the ship; board the ship, and/or require the ship to be taken to a UK port and detained there.86

81.There are also related powers to search and obtain information; powers of arrest and seizure; powers to conduct protective searches of persons; and powers to search for nationality documents.87

Powers in the Nationality and Borders Bill

Clause 44 and Schedule 6: Enforcement powers in relation to ships

82.Clause 44 (maritime enforcement) introduces Schedule 6 to the NBB which amends Part 3A of the Immigration Act 1971 (maritime enforcement). It includes a new section 28LA (enforcement powers in relation to ships: United Kingdom), which entitles an immigration officer or enforcement officer to exercise powers in all waters and in respect of all ships.88 It is questionable whether it would be compatible with international law for some of those powers to be exercised, for example, in relation to a foreign ship, or in foreign waters, at least without arrangements being in place with the relevant State. We note that the authority of the Secretary of State is required before such powers can be exercised in relation to ships other than UK-flagged ships, and in relation to any ship in foreign waters.

83.The powers an immigration officer or enforcement officer is entitled to exercise in respect of those ships are set out in a new Part A1 of Schedule 4A to the Immigration Act 1971 (introduced by paragraph 10 of Schedule 6 to the NBB). It includes a power to stop, board, divert and detain a ship that is being (or has been) used in connection with a relevant offence, including requiring the ship to be taken to any place (within the UK or elsewhere) and detained there, and requiring the ship to leave UK waters.89

84.New Schedule A1 includes related powers to search and obtain information; powers of arrest and seizure; powers to conduct protective searches of persons; and powers to search for nationality documents. It empowers an immigration officer or enforcement officer to use reasonable force in carrying out these functions. Further, the Schedule provides that it is an arrestable offence to obstruct or to fail to comply with a requirement made by an officer.

85.The maritime enforcement powers introduced by clause 44 and Schedule 6 to the Bill may be capable of being exercised compatibly with human rights. However, there are also significant risks that such powers can be exercised in a way that is not compatible with human rights. It would seem appropriate for the Home Secretary to specify more clearly how such powers will be exercised and how she will ensure that they are not exercised in a way that would violate human rights, for example the right to life.

86.The Home Secretary should provide a detailed memorandum setting out clearly how maritime enforcement powers under amended Schedule 4A to the Immigration Act 1971 will be exercised, how human rights would be engaged by such maritime enforcement activity, and in particular how she will ensure that such powers are not exercised in a way that would violate human rights. She should also reflect on whether all these powers are needed or whether they can be subject to conditions to ensure that they are only used in a way that respects human rights, and in particular the right to life.

87.Given the particular risks to life posed by using force at sea, we recommend that Schedule 4A to the Immigration Act 1971 be amended to specify that force must not be used if it would endanger life at sea. Additionally, we would suggest an amendment, ideally to all parts of Schedule 4A to the Immigration Act 1971, to read “The powers set out in this Part of the Schedule must not include any activity that could endanger life at sea.”

Compliance with international law when undertaking maritime enforcement

88.The Bill, as introduced, provided that the Secretary of State could only authorise action in respect of certain vessels if UNCLOS permitted the exercise of such powers in respect of that ship.90 This is the same language as for the equivalent existing requirements in sections 28M, 28N and 28O of the Immigration Act 1971 (which introduce Parts 1–3 of Schedule 4A to that Act). The Explanatory Notes to the Bill as introduced consequently stated that: “Authority for the purposes of subsection 3 may be given only if the Secretary of State considers the United Nations Convention on the Law of the Sea 1982 permits the exercise of Part A1 powers in relation to the ship and that action will be taken in line with International law”.91

89.However, the Government introduced an amendment in Committee to delete this requirement. Therefore, as the Bill left Committee, the language of new section 28LA of the Immigration Act 1971 (which introduces new Part A1 of Schedule 4A to that Act), in Schedule 6 to the Bill, contrasts with the equivalent existing requirements in sections 28M, 28N and 28O of the Immigration Act 1971 (which introduce Parts 1–3 of Schedule 4A to that Act). Specifically, there is no longer any requirement in new section 28LA that the authority from the Home Secretary may only be given in relation to a foreign ship if UNCLOS permits the exercise of those powers in relation to that ship.

90.The Government should clarify why it felt it necessary to introduce this amendment to new section 28LA to remove the requirement in existing law for the Home Secretary to grant authorisations for maritime enforcement only where to do so would be compatible with international law, under UNCLOS. Alternatively, similar drafting to that which appears in section 28M(4), 28N(4) and 29O(4) of the Immigration Act 1971 should be added to new section 28LA in Schedule 6.

91.Public authorities are bound by section 6 of the Human Rights Act to act compatibly with the UK’s ECHR obligations, and this would apply equally to actions of immigration officers and enforcement officers in undertaking maritime enforcement activity, as well as to the decisions taken by the Home Secretary in authorising any such activity. Moreover, the Ministerial code requires Ministers to comply with the law, which includes international legal obligations binding on the UK.92

92.We further note in this regard that the Explanatory Notes to the Bill as introduced state “Any tactics employed to divert a ship will only be used where it was safe to do so, in line with international law, including UNCLOS, and a vessel would only be required to leave UK waters if there were no concerns about the vessel’s ability to reach land or the welfare of those on board.”93

93.In any actions authorising or carrying out maritime enforcement, we expect Ministers and officials to comply with the law, including the UK’s international legal obligations, such as its human rights obligations and obligations under international maritime law. We expect Parliament to be informed if there is any intentional or accidental deviation from compliance with international law, including international human rights law.

Criminal and civil responsibility for maritime enforcement actions

94.Paragraph J1 of Part A1 of Schedule 4A to the Immigration Act 1971, introduced by paragraph 10 of Schedule 6 to the NBB, provides that an immigration officer or an enforcement officer is “not liable in any criminal or civil proceedings for anything done in the purported performance of functions under this Part if the court is satisfied that the act was done in good faith and there were reasonable grounds for doing it”. This mirrors the provision in paragraphs 10, 21 and 32 of Part 1 of Schedule 4A to the Immigration Act 1971 (inserted by the Immigration Act 2016) in relation to existing maritime enforcement powers.

95.It is unclear why Government policy is that those who suffer harm as a result of immigration enforcement action at sea should not have recourse to an effective remedy. Such action could, for example, negligently cause a person’s death or serious injury, even if such action was done in good faith and for ostensibly reasonable immigration enforcement grounds. However, this clause could mean that, for those cases caught by this provision, there is no way of holding Government (or their agents) to account for killing or injuring a person through negligence, including gross negligence—either in criminal or civil law. It is difficult to understand why there should be impunity in such circumstances, or how it would be compatible with the procedural obligations in Articles 2 and 3 ECHR and the right to an effective remedy in Article 13 ECHR. As Sonali Naik QC said in evidence to the Committee:

In the civil context, there is a question as to whether individual officers could be sued under the common law for false imprisonment or negligence, but there is no immunity from suit in respect of liability for Human Rights Act damages. There would have to be a specific derogation for that. An ordinary reading of the Bill as it is proposed would be incompatible with the Human Rights Act because in those circumstances as described an act may violate an ECHR article and give rise to a claim for damages for just satisfaction, even if the officer was acting reasonably and in good faith. Again, it is incompatible with the ordinary provisions of our obligations under the HRA.94

96.It is understandable that it should principally be the Government that is responsible, in a civil claim, for the actions of its officers, rather than the officers being personally liable. This is borne out through the usual operation of vicarious liability. Similarly, it would be the Government that would be responsible in any human rights claim for a breach of human rights caused by the actions of its officers. However, this clause could risk neither being liable for harm caused, even killing a person (where that was done as a consequence of immigration enforcement action). It would be better if this clause made it clear that this wasn’t an attempt by the Home Office to absolve itself of civil liability, but rather specifically for the officers not to be liable personally. We therefore recommend amending that paragraph to read “The Home Office, rather than an individual officer, is liable in civil proceedings for anything done in the purported performance of functions under this Part of this Schedule.”

97.Investigations, including criminal investigations, are part of the way in which the UK complies with its procedural Article 2 ECHR obligations to investigate deaths where there is the involvement of State agents (or indeed Article 3 ECHR obligations if the issue is, for example, mistreatment). It is therefore important that any changes to criminal legal liability do not impede the ability of the UK to comply with its procedural investigative obligations under Articles 2 or 3 ECHR.

98.If a criminal offence has been committed whilst undertaking pushbacks or other maritime enforcement operations, it is difficult to understand why there should be a specific defence or immunity from prosecution for immigration officers or enforcement officers. For example, if a child is killed due to the actions of an immigration officer at sea, it is hard to comprehend why that immigration officer should not be subject to the normal thresholds to assess criminal responsibility (for example if there was gross negligence manslaughter or unlawful and dangerous act manslaughter). We therefore recommend that an amendment is made to remove any risk of immunity from prosecution for criminal offences committed by immigration officers or enforcement officers whilst undertaking pushbacks or other maritime enforcement operations.

The appropriateness of applying enforcement powers to dinghies and small vessels.

99.Importantly, the amendments introduced by Schedule 6 to the NBB need to be read in light of the amendment in paragraph 8 of Schedule 6, which amends the definition of “ship” in section 28Q Immigration Act 1971, so as to include any “structure (whether with or without means of propulsion) constructed or used to carry persons, goods, plant or machinery by water”. This makes it clear that enforcement action could not only be carried out in respect of seaworthy ships, but also in respect of any small vessel, including rafts and dinghies. As Aurelie Ponthieu, the co-ordinator of the forced migration team for Médecins Sans Frontières, said in her evidence to the Committee:

I can say that there is no safe way to intercept and to stop any migrant boat at sea. We are talking about unseaworthy vessels. We are talking about people who do not have any navigation skills or materials. They very often do not have life jackets. If they have life jackets, these life jackets do not save their lives. We are talking about boats filled with children, pregnant women and people who are already in danger and in immediate need of rescue.95

100.As previously recognised, the primary obligation in respect of those at sea must be safety of life. This is even more so when dealing with people on small, unseaworthy vessels, in a busy shipping lane, often with rough waters, as is the case for migrants in small boats in the Channel. A policy of pushbacks would risk failing to comply with the obligations to save those in distress at sea, and instead would risk a situation where state actors were actively placing individuals in situations that would have an increased risk to life. 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, especially if applied to fragile unseaworthy vessels.

101.Paragraph 8 of Schedule 6 should be amended so that it reads: “”ship” includes every description of vessel (including a hovercraft) used in navigation, but does not include 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”.

Power to seize and dispose of property

102.Schedule 6 also introduces a new section 28PA (power to seize and dispose of ships etc.) to the Immigration Act 1971. This provides a power to seize a ship, and any property relating to the operation or use of the ship, where the ship is in the UK (including UK waters) and where the immigration officer has reasonable grounds to suspect that the ship was used in the commission of a relevant offence.96 The authority of the Secretary of State is required to seize any property under this section. The Secretary of State may then return the ship (or other property) to its owner, dispose of the ship (or other property), or determine that the ship (or other property) should be retained for use in a function under the Immigration Acts. This power to seize and dispose of property necessarily interferences with Article 1 of Protocol 1 ECHR (the right to peaceful enjoyment of one’s possessions), as is recognised in paragraph 62 of the Home Office’s ECHR Memorandum. In that Memorandum, the Home Office sets out its efforts to ensure property is returned in a timely fashion to owners and explains that it considers that any interference with property rights is justified and strikes a fair balance between the wider public interest and the interest of a vessel owner.97

103.The power to seize and detain property seems capable of being exercised compatibly with Convention rights, however it is noteworthy that it applies to a significant number of offences, including some where deprivation of property may not be a reasonable or proportionate outcome in an individual case. It will therefore be important that this power is exercised proportionately in practice. We therefore encourage the Home Secretary to issue guidance setting out how she will use this power and how she will ensure that it is only used when it is proportionate to do so.

Practical implications of push backs

Will it ever be safe to use pushback tactics?

104.Various stakeholders have, as noted above, expressed concerns that pushback tactics could risk endangering the lives of those in small vessels. As Tony Smith CBE, former Director General of Border Force, told the Public Bill Committee, the kind of vessels crossing the Channel are “very vulnerable”.98 Given the vulnerability of vessels and obligations for Border Force to protect the safety of life at sea, some have questioned whether pushback tactics could ever safely be used against small vessels. For example, Lucy Moreton, Professional Officer at the Immigration Services Union, told the Public Bill Committee:

On the issue of pushbacks, as things stand at the moment, given the instructions that we work under to ensure the safety of life at sea and the legality of it, it seems to us—the trade union, and the members who advise us—extremely unlikely to happen in practice. The restrictions are, quite rightly, very tight. No one wants to see a fatality from what is a very dangerous manoeuvre.99

105.There may be circumstances where, however, pushback tactics could be used in a manner that is safe and complies with the UK’s human rights obligations. For example, if the vessel subject to the pushback was a large fishing vessel.

Unintended consequences

106.If pushback tactics are adopted there is a risk that those on board small vessels will be hesitant to engage with border officials, even when those officials are trying to bring them to safety. In his evidence to this Committee Daniel Ghezelbash noted examples from Australia and the Mediterranean of intercepted asylum-seekers jumping overboard, which in turn caused ships to capsize. He went on to note that: “There have also been a number of instances that I am aware of in Australia where there has been attempts at self-sabotage of the boats to stop the pushbacks taking place, which have resulted in significant loss of life.”100

Safety and wellbeing concerns for border officials

107.Adopting pushback tactics may have significant adverse impacts on Border Force officials tasked with carrying them out. In evidence to the Home Affairs Select Committee, Professor Naomi Klein, University of New South Wales, noted that in Australia there had been “concerns on some occasions for the safety and the security of the Australian personnel who were operating at the time.”101 In 2014 several Royal Australian Navy personnel who had assisted in pushback operations noted the significant trauma they had been exposed to with three reporting they had been diagnosed with post-traumatic stress disorder (PTSD) and medically discharged from service.102

Will pushback tactics deter Channel crossings?

108.It is difficult to predict whether the adoption of pushback tactics in the Channel will make the route “unviable” and achieve the stated aim of deterring “illegal entry into the United Kingdom, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger.”103 It may be that the Channel route has become more popular as a result of increased deterrents at other available routes. The UNHCR has also suggested that the increase in Channel crossings is a result of the significant reduction in air and freight traffic during the covid-19 pandemic.104 Stopping people smugglers profiting from “human misery” is, of course, an important and worthy goal, but any measure adopted must achieve this whilst also protecting the rights and humanity of asylum seekers.

109.In their written evidence Migration Watch generally supported increased enforcement powers in the Bill, including pushbacks, describing them as “reasonable”.105 On the other hand, in his oral evidence to the Committee Enver Solomon, Chief Executive of the Refugee Council, questioned whether the provisions in the Bill would deter people smugglers. He said:

The Bill does nothing about the push factors, the reasons why people have to flee persecution and terror to come here. The principle holds that we should do what we have always done, which is give people a fair hearing on UK soil. I am not convinced, in anything I have seen in this Bill, that it will do anything to put people smugglers out of business or to stop people being exploited by people smugglers.106

110.The Government’s own Equality Impact Assessment (EIA) acknowledges that there is “limited evidence supporting the effectiveness” of the measures in the Bill of deterring asylum seekers from undertaking dangerous journeys facilitated by smugglers. The EIA further states that “increased security and deterrence could encourage [asylum seekers] to attempt riskier means of entering the UK.”107

111.We are concerned that even the Government’s own Equality Impact Assessment suggests that increased enforcement powers may not deter individuals from crossing the Channel and may even encourage them to take “riskier routes”. The Government should do everything it can to prevent more individuals losing their life while trying to cross the Channel or attempting to enter the UK by other means.

Potential alternatives to pushbacks

112.Some organisations told us that the only truly effective way to deter illegal entry and break the business model of people smugglers is to create safe and legal routes for asylum seekers. For example, Safe Passage UK said: “If the Government was serious about preventing refugees from having to risk dangerous journeys to reach sanctuary, they would instead open safe routes to the UK for refugees.108 Other witnesses expressed their view that what is needed are fairer and faster systems for deciding asylum claims.109 One novel idea was suggested by Donate4refugees in their written evidence; they said that the most effective way to deter Channel crossings would be to:

Allow people to claim asylum at our frontier controls in France (ref: Treaty of Le Touquet, February 2003). They would claim asylum to UK officials at the border on French soil, complete the first stage of their application and, if their initial application for asylum is accepted by the Home Office in the UK, then the Home Office would transfer them to the UK on regular transport–ferry/Eurostar/Channel Tunnel. They could be given their Asylum Registration Card in France as their permission to travel. Upon safe arrival in the UK they would start the “normal” UK process of dispersal accommodation and asylum support to wait through their asylum decision.

This would severely reduce demand for smugglers and they would leave northern France due to lack of customers. (Supply/Demand)

This would better control our borders as the Home Office would determine who gets to enter so they would be checked on border watch lists etc BEFORE crossing.110

113.Given their positive duties to protect the right to life, the Government should not engage in pushback tactics that would endanger asylum-seekers crossing the Channel or implement policies that would contribute to asylum-seekers taking dangerous routes into the UK. The Government should consider whether the stated aim of deterring people smugglers by making the Channel an “unviable” route while still fulfilling their obligations to protect life could be better served by alternative means. A range of alternative options have been provided in written evidence to this inquiry, such as creating more safe and legal routes for refugees or enabling asylum seekers to obtain visas to come to the UK from France to claim asylum.

83 These powers are set out in Parts 1 (in respect of England and Wales), 2 (in respect of Scotland) and 3 (in respect of Northern Ireland) of Schedule 4A to the Immigration Act 1971

84 Sections 28M(3), 28N(3) and 29O (3) Immigration Act 1971

85 Sections 28M(4), 28N(4) and 28O(4) Immigration Act 1971. See also Adrian Berry, In the Footsteps of Sir Francis Drake: Home Office Plans for the Seas in the Nationality and Borders Bill, 15 September 2021

86 Paragraphs 2, 13 and 24 of Schedule 4A to the Immigration Act 1971

87 Paragraphs 3–6, 14–17 and 25–28 the Schedule 4A to the Immigration Act 1971

88 It purports to empower an officer to exercise powers in UK territorial waters (UK waters), on the high seas (international waters), and also in the territorial waters of another State (foreign waters). It also purports to empower an officer to exercise such powers in relation to UK flagged ships, foreign ships, ships without nationality and ships registered under the law of a UK Crown dependency or overseas territory.

89 The authority of the Secretary of State is required before any power can be used to require a ship to be taken to any place outside of the UK and detained there.

90 Schedule 5, paragraph 2, new section 28LA(4) of the Bill as introduced

91 Explanatory Notes to the Nationality and Borders Bill [Bill 141 (2021–22)-EN] para 458

92 Paragraph 1.3 of the Ministerial Code states: “The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public life.”

93 Explanatory Notes to the Nationality and Borders Bill [Bill 141 (2021–22)-EN] para 471

94 Q3

95 Q2

96 Relevant offences are set out in an amendment to section 28Q (interpretation) of the Immigration Act 1971 and include: entry in breach of a deportation order (section 24(A1) of the Immigration Act 1971 as amended by this Bill), illegal entry (section 24(B1) of the Immigration Act 1971 as amended by this Bill), arrival without required entry clearance (section 24(C1) of that Act, a new offence created by this Bill); arrival without a valid ETA (section 24(D1) of that Act, a new offence created by this Bill); working illegally (section 24B); facilitation (section 25 of that Act, as amended by this Bill), assisting an asylum seeker to arrive in or enter the UK (section 25A of that Act, as amended by this Bill), facilitation of a breach of a deportation order (section 25B of the 1971 Act to the extent that section continues to apply); employing a person who does not have a right to work in the UK (section 21 Immigration, Asylum and Nationality Act 2006); and attempts to commit any of those offences.

97 As the Home Office’s ECHR Memorandum sets out (at paragraph 62): “The Department seeks to ascertain the owners of vessels. Three vessels have been returned since 2018. The safeguards for a vessel owner are as follows. First, the Department may not dispose of the boat until 31 days has elapsed. Secondly, if the boat is flagged, the Department must notify the flag state (this will also assist in seeking to ascertain the owner). Thirdly, the Department will be required to take steps to ascertain the owner and, unless to do so would prejudice criminal investigations or proceedings, to notify the owner.”

98 Nationality and Borders Bill Committee, 21 September 2021, col 56

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

101 Oral evidence taken before the Home Affairs Select Committee on 11 November 2020, HC 705 (2019–21), Q443 [Professor Natalie Klein]

103 Explanatory Notes to the Nationality and Borders Bill [Bill 141 (2021–22)-EN] paras 1 and 38

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

105 Migration Watch UK (NBB0040)

108 Safe Passage UK (NBB0065)

110 Donate4refugees (NBB0069)




Published: 1 December 2021 Site information    Accessibility statement