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

5Criminalisation of asylum seekers and those who help them

Changes to the offence of illegal entry

114.A number of the clauses in the Bill are focused, at least in part, on reducing the level of ‘irregular’ entry to the UK, including by those seeking asylum. These include clause 11 and clause 15 in Part 2 of the Bill, which are outside the ambit of this report, and clause 39 in Part 3. Clause 39 alters the criminal offences contained in section 24 of the Immigration Act 1971, which concerns “illegal entry and similar offences”.

Illegal entry and arrival

115.Under the current law it is a criminal offence to “enter” the UK without leave. Clause 39 would also make it an offence for a person who requires entry clearance to “arrive in” the UK without a valid entry clearance (i.e. a visa). This would be a significant development because “entering” and “arriving” in the UK have different meanings in immigration law. Under section 11(1) of the Immigration Act 1971:

a)A person ‘arriving’ by ship or aircraft is deemed not to ‘enter’ the UK until they have disembarked from the ship or aircraft and, if at a port, until they have left the immigration control area;

b)If a person is detained or granted immigration bail, they will still not be considered to have ‘entered’ the UK even after they have left the immigration control area.

116.This interpretation of ‘entering’ the UK has significant ramifications for those who come to the UK to seek asylum. A person who claims asylum before they disembark from a ship or aircraft, and a person who arrives at a sea or airport and claims asylum before they have passed through immigration control, will, as a result of section 11(1), have done so before they enter the United Kingdom. In such circumstances, the asylum seeker will usually be granted what used to be known as ‘temporary admission’ to the UK but what is now formally ‘immigration bail’—or alternatively they will be taken into immigration detention. This means that they will never ‘enter’ the United Kingdom without valid entry clearance and thus will not be committing an offence under section 24.

117.The Bill would change this by making arriving in the UK without entry clearance an offence. The Explanatory Notes state that “[t]his will allow prosecutions of individuals who are intercepted in UK territorial seas and brought into the UK who arrive in but don’t technically “enter” the UK.”111 The Government’s commitment to prosecuting traffickers and people smugglers is understood, and forms part of a commitment to protecting the Article 2 rights of those crossing the Channel to seek refuge. However, the justification for the change to the law is focused on those who are intercepted at sea, not on traffickers and smugglers. Indeed, the change is more likely to affect those being trafficked or smuggled. As the UNHCR have said in their legal observations on the Bill:

[ … ] in spite of the Government’s repeated references to deterring dangerous journeys and targeting criminal gangs, few of the Bill’s punitive provisions are clearly related to the safety of a refugee’s journey or how it was facilitated. Instead, they focus on punishing the asylum-seekers themselves.112

118.It is unclear why those who are smuggled should be criminalised and whether potential criminalisation would have any effect on their route into the UK. We received evidence explaining that many asylum seekers are forced to put themselves in the hands of people smugglers and, as a result, have little control over where they are going and how they are getting there. This includes those who cross the Channel. Elkhansaa, from the VOICES network, told us:

When I came here, I did not have a clue where I was heading to. I just was looking for sanctuary and that agent was being paid. When we had just landed in the UK, he said, “You go and ask for asylum”. I did not even know what asylum meant at the time and how things could go on.113

119.Furthermore, this change will do more than make it easier to prosecute those intercepted in territorial seas. The effect of clause 37 would be that a person fleeing persecution who arrived in the UK without a visa would commit an offence under section 24, even if they presented themselves immediately to an immigration official and claimed asylum.

120.Crucially, for this purpose and for asylum policy more generally, no visa for the purposes of claiming asylum exists and it is not possible to claim asylum without coming to the UK. UNHCR have commented on the implications of this:

Given that there is no possibility under UK law of applying for entry clearance in order to claim asylum, no one from a country whose citizens normally need a visa would be able to come to the UK to seek asylum without potentially committing a criminal offence. Ninety percent of those who are granted asylum in the United Kingdom are from countries whose nationals must hold entry clearance (a visa) to enter the UK.114

121.Furthermore, it is an offence to obtain or seek leave to enter or remain through deception, so obtaining a visa for other purposes when the intention is to seek asylum is also prohibited. Overall, this means that the changes to immigration offences proposed in clause 39 would leave very little scope for an asylum seeker to arrive in the UK, other than under a resettlement scheme, without committing an offence under section 25. As Sonali Naik QC, immigration barrister at Garden Court Chambers, summed up:

At present, asylum seekers who enter illegally are liable to prosecution, but asylum seekers who arrive at the port of entry and claim asylum immediately are not. The amendment in Clause [39] of the Bill to the Act removes that distinction. Therefore, it will criminalise genuine asylum seekers, even if they have no other option but to flee [ … ]115

122.The one ‘legal route’ theoretically open to refugees is to come to the UK via a resettlement scheme.116 Resettlement schemes are an important element of how the UK meets its commitment to provide shelter to those fleeing persecution and human rights abuses. They cover only a limited number of refugees, however, and they do not represent an answer for those in immediate peril. Between the start of 2014 and the end of June 2021, 26,969 people were brought to the UK under a resettlement scheme (less than 4,000 per year), representing approximately one fifth of all the individuals granted asylum over that period.117 Sonali Naik QC made the limitations of such schemes clear in her evidence to us:

Take Afghanistan as a current and very acute example. We have many people who are fleeing Afghanistan and if they want to claim asylum in the UK, if they have family members here and so on, there is no mechanism by which that can currently happen. The Secretary of State’s long-term commitment to resettle a number of refugees, 20,000 or whatever over however many years, will not deal with the immediate and acute risks of persons who are at risk of serious harm or persecution. There is no way that a resettlement programme can deal with those who are at immediate risk, and there is no legal route.118

123.Ultimately, we agree with the conclusion reached by Freedom from Torture in their written submission to us on clause 39 that “the effect of this clause is to criminalise the act of seeking asylum in the UK.”119

Article 31 of the Refugee Convention

124.Setting up a system whereby refugees are unable to travel to the UK to claim asylum without committing a criminal offence is inconsistent with the overall purpose of the Refugee Convention 1951.120 More specifically, it is inconsistent with Article 31 of the Refugee Convention.

125.Under Article 31 the UK has committed to “not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

126.In evidence to us, Raza Husain QC, barrister at Matrix Chambers, explained that the “non-penalisation of refugees, non-penalisation criminally and administratively of those who arrive irregularly, is at the very core of the Refugee Convention. It is central to its scheme.”121

127.Article 31 does not prohibit the penalisation of refugees who do not “come directly” from their territory, or those who do not present themselves without delay and show good cause for their illegal entry or presence. Clause 34 in Part 2 of the Bill would introduce a very narrow interpretation of what “coming directly” means, based on what the Government have described as the “long-standing principle that asylum seekers should claim at the earliest opportunity in the first safe country they reach.”122 In oral evidence to us Rossella Pagliuchi-Lor, the UNHCR representative to the UK, stated that “[s]uch a principle does not exist in international law and, indeed, it could not exist in international law because it would undermine the very principle of co-operation on which the system is premised.”123 She explained that under the Refugee Convention “there is no obligation to seek asylum in the first country, but there is also no unfettered right to pick and choose where you want to be.”124 In any event:

a)Given the obligation on the UK to implement the Refugee Convention in good faith, we agree with the UNHCR that “[e]ven where the requirements of Article 31(1) are not met and penalties are in theory permissible, they must be proportionate to the offence and not operate in such a way as to undermine the right to seek asylum;125 and

b)The proposed offence of arrival in the UK without valid entry clearance does not even seek to distinguish between those who have come directly from the country in which their life or freedom was threatened and those who have not.

128.The UNHCR’s concern about the proportionality of any penalties is of particular relevance since clause 39 would not only expand offences of illegal entry, but also substantially increase the maximum penalties available for offences under section 24 of the Immigration Act 1971. Returning to the UK in breach of a deportation order would carry a maximum penalty of 5 years’ imprisonment. Both entering without leave and arriving in the UK without a visa would carry a maximum penalty of 4 years–with a sentence of 12 months available on summary conviction.126 Currently, each of the comparable existing offences have maximum penalties of 6 months’ imprisonment. UNHCR has described the penalty of four years as “a clearly disproportionate sentence.”127 While we would not expect the maximum sentence, or anything close to it, to be applied to a person who has arrived in the UK unlawfully simply to claim asylum, there remains a significant risk of imprisonment, which could amount to a disproportionate penalty.

129.The evidence provided to us was unanimous that the proposed changes in clause 39 are inconsistent with this core provision of the Refugee Convention. For example, Daniel Ghezelbash, Associate Professor at Macquarie University, Australia noted that:

[ … ] it is quite rare for liberal democracies to criminalise asylum in this way. Australia is known for its very harsh asylum policies, but we have never considered criminalising irregular entry. It can be unlawful under immigration law, but criminalisation is an extraordinary step that is in clear violation of Article 31 of the Refugee Convention.128

130.And Freedom from Torture concluded:

Attempts to criminalise irregular refugee arrivals run against the letter and spirit of the 1951 Convention, which ensured that the impossibility of pre-authorised travel would be no barrier to seeking and accessing protection from persecution.129

131.We asked Rossella Pagliuchi-Lor of UNHCR whether clause 39 was compatible with Article 31. Her answer was unequivocal:

Absolutely not. There is an article that established no penalisation of refugees on account of irregular entry. Penalising them is an obvious breach of it.130

Domestic law and practice

132.Domestic criminal law provides a defence that mirrors Article 31, which is set out in section 31 of the Immigration and Asylum Act 1999. However, this defence does not apply in respect of offences under section 24 of the 1971 Act–including those proposed under clause 39 of the Bill. It is hard to understand why the provision designed to give effect to Article 31 does not provide protection against criminalisation for illegal entry. Extending this defence, so that it applies in respect of section 24 offences, would remove a gap in the law that is inconsistent with Article 31 of the Refugee Convention. Since the Bill also proposes a narrower interpretation of Article 31, however, the section 31 defence alone would not prevent the new offence of illegal arrival in the UK being inconsistent with Article 31.131

133.The UNHCR has expressed “deep concern” about the limits of the section 31 defence:

UNHCR therefore notes with deep concern that UK law only permits defences to criminal prosecution based on Article 31(1) for a narrow range of immigration offences related to deception or the use of false documents [ … ] the focus in the Plan and the Bill on increasing the criminal penalties for illegal entry–and adding a new penalty for arrival without entry clearance–make it urgently necessary that Section 31 of the 1999 Act be expanded so as to comply with the UK’s obligations under Article 31(1) of the Refugee Convention.132

134.We received evidence arguing that while there are many immigration offences on the statute book, these are, in practice, rarely prosecuted.133 In the same vein, we note that Crown Prosecution Service (CPS) policy on immigration offences recognises that where no statutory defence applies, the Refugee Convention should nevertheless be taken into account when a decision is being made on the public interest in pursuing a prosecution.134 While the policy does state that consideration must be given to whether Article 31 of the Refugee Convention applies, even when it does this means only that it is “less likely that a prosecution is required.” The policy explicitly states that it will “not provide an automatic bar to prosecution” and that Article 31 must be weighed against other factors including the harm, disruption or economic loss that the offending has caused and whether “[t]he offending caused a significant investment of police or immigration resources.”

135.CPS guidance may help to ensure that Article 31 is generally respected, and that asylum seekers will rarely be prosecuted even if the changes proposed in clause 39 were to become law. However, CPS guidance on the public interest in prosecution will not prevent asylum seekers being arrested by the police for committing offences. We were reminded in evidence that many of those who seek asylum in the UK have been through terrible hardship, and to face arrest and potentially a criminal charge on arrival has implications beyond the legal consequences. Aurelie Ponthieu, Co-ordinator Forced Migration Team at MSF:

[ … ] when we are talking about criminalising asylum seekers we are talking about people who have already been through very traumatic experiences. We are talking about survivors of torture and survivors of political violence. When people reach the UK they will already have been through many countries where they have been victims of violence and where they have been detained. They will arrive in a very vulnerable state, so on top of the legal implications of this provision, that would have very clear consequences in terms of their mental and physical health. I think it would be very problematic and very destructive.135

136.Furthermore, and crucially, reliance on prosecutorial discretion and CPS guidelines cannot be sufficient to ensure compliance with Article 31 of the Refugee Convention, given that statute expressly provides for offences that penalise refugees in breach of Article 31.

137.The introduction of an offence of illegal arrival under clause 39 would effectively criminalise the act of seeking asylum in the UK. This is inconsistent with the UK’s obligations under the Refugee Convention, including Article 31, which prohibits the penalisation of refugees for unauthorised entry. To ensure that it does not violate the UK’s obligations in international law, clause 39 should be amended to remove the offence of arriving in the UK without valid entry clearance. The Bill should also provide for the amendment of section 31 of the Immigration and Asylum Act 1999 so that the defence it contains is available in respect of all offences relating to unauthorised entry, including offences under section 24 of the Immigration Act 1971.

Further ramifications

138.In addition to exposing asylum seekers to the criminal justice system in breach of Article 31, the criminalisation of claiming asylum would have further knock-on effects for those who arrive in the UK without visas. A criminal conviction can have implications for a refugee’s future in the UK. As Sonali Naik QC told us:

It will have significant consequences because then if those persons were prosecuted, even if they have obtained [refugee] status, they will have a criminal record. They will be deemed to be persons not of good character. It will impact on their ability to integrate and settle in the UK. Down the line, it will impact on their ability to acquire, if they wish to, British citizenship because they will be criminalised.136

139.More specifically, Article 33(2) of the Refugee Convention provides that the non-refoulement obligation, which is central to the protection provided to any refugee, does not apply if the refugee is someone who “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” This means that such a refugee can be returned without this violating the Refugee Convention (although they would not lose the other protections of the Refugee Convention, or protections provided by Article 3 ECHR). Currently, any person who has committed an offence and been sentenced to imprisonment for at least 2 years is presumed to have been convicted of “a particularly serious crime and to constitute a danger to the community”.137 Clause 37, in Part 2 of the Bill, proposes reducing this threshold to any sentence of 12 months or more. Particularly given that the Bill proposes increasing the maximum sentence for an offence of illegal arrival or entry to 4 years imprisonment (with a sentence of 12 months available on a summary conviction), there is a risk on the face of the Bill that an asylum seeker could lose their protection against refoulement under the Refugee Convention as a result of simply arriving in the UK to claim asylum.

140.In addition, in Part 5 of the Bill, which concerns ‘Modern Slavery’, clause 62(3)(f) would permit a victim of slavery or human trafficking to be deprived of their rights as such where they have been convicted of an offence and received a sentence of 12 months imprisonment or more. The question of whether or not this clause, in of itself, is compliant with the UK’s human rights obligations to such victims under Article 4 ECHR (the prohibition on slavery) and ECAT falls outside the ambit of this Report. However, it is clear that, pursuant to clause 39 of the Bill, an offence of arriving in the UK without valid entry clearance could result in a sentence of 12 months or more and thus fall within clause 62(3)(f). The combined result of these two new clauses in the Bill risks depriving a person who is a victim of human trafficking or slavery of protection due to the fact that they arrived illegally, potentially as a result of that trafficking, contrary to the UK’s protective obligations under Article 4 ECHR and ECAT. Moreover, due to this failure to adequately protect the victims of human trafficking and slavery, this in turn risks creating a situation where the UK is unable to comply with its obligations under Article 4 ECHR and ECAT to undertake adequate investigations and prosecutions of those responsible for human trafficking and slavery. As Raza Husain QC said in evidence to us:

Clause [62] … sets a very low threshold for defining public order grounds, which preclude an individual who is a trafficking victim from support. If you have a 12-month sentence—this, remember, is what you could get on summary conviction; the maximum sentence is four years—for arriving to claim asylum, under Clause [39], it is absolutely unprecedented in our history that that has been criminalised. If you do that, that then rebounds not just in refugee law, but in trafficking law.138

141.The potential for changes to immigration offences under clause 39 to impact on integration and settlement, on a refugee’s protection against non-refoulement and on the protections provided to a victim of slavery or trafficking represent further reasons why amendment to the Bill is needed.

Facilitation offences

142.The Bill would make changes to two separate offences: contained in section 25 and section 25A of the Immigration Act 1971.

Section 25, Immigration Act 1971

143.Under section 25 of the 1971 Act, it is currently an offence to facilitate the commission of a breach, or attempted breach, of immigration law by a person who is not a national of the UK. This includes cases in which the person breaching, or attempting to breach, immigration law is an asylum seeker.139 The meaning of ‘enter’ in immigration law means, however, that an asylum seeker will not be ‘entering’ the UK illegally if they claim asylum before disembarkation or on arrival at a port (see above). Thus, under current law no crime will be committed under section 25 by piloting a boat across the Channel if the intention of those on the boat is to be intercepted and taken to port, or to head directly to a port, to claim asylum.140

144.This would be changed by clause 39(4) of the Bill, which would amend the section 25 offence to ensure that it covers facilitating the commission or attempted commission of the proposed new offence of ‘arriving in’ the UK without a visa. This means that the offence would be committed by someone piloting a small boat even if the intention of all of those on board was to claim asylum when rescued or at port on arrival. Furthermore, clause 40(1) would increase the maximum penalty for committing an offence under section 25 to one of life imprisonment. While it is highly unlikely that such a severe sentence would be handed down to someone who altruistically assisted asylum seekers, it is alarming that a disproportionate sentence is theoretically applicable. It is notable that while the section 25 offence requires knowledge, or reasonable cause for believing, that the action is facilitating a breach or attempted breach of immigration law,141 it does not require the defendant to be acting for financial gain. To this extent, the section 25 offence can be contrasted with the separate offence of helping an asylum seeker arrive in or enter the UK at section 25A.

Section 25A, Immigration Act 1971

145.Under section 25A of the 1971 Act it is an offence to knowingly facilitate the entry or arrival of a person who you know or have reasonable grounds to believe is an asylum seeker. At present, this offence only applies, however, to a defendant who has facilitated the arrival or entry (or attempted arrival or entry) of an asylum seeker “for gain”. Furthermore, the section 25A offence “does not apply to anything done by a person acting on behalf of an organisation which aims to assist asylum-seekers and does not charge for its services.” Together these provisions protect from prosecution individuals and organisations who provide altruistic help to those seeking asylum and focus the offence on those who traffic asylum seekers into the UK or smuggle them in for gain.

146.Clause 40(2) of the Bill would make a small but potentially significant change to the offence by removing the requirement that the facilitation be “for gain”. This would remove the need to prove that a defendant was seeking to gain from their facilitation, and thus make the offence easier to prosecute. It would also, of course, bring within the offence persons who help asylum seekers for altruistic motives. Importantly, however, the offence would retain the exemption for “anything done by a person acting on behalf of an organisation which aims to assist asylum-seekers and does not charge for its services.” This would exclude the possibility of charities and not-for-profit organisations whose purpose is supporting asylum seekers being prosecuted for their work. Despite the retention of this exemption, we received evidence from several such organisations concerned that their work might be criminalised.142 The existence of the exemption for these organisations should be made clear if the Bill becomes law.

Implications of proposed changes

147.Despite the intention to maintain the exemption for organisations whose aim is to assist asylum seekers without charge, the proposed change to the section 25A offence in clause 40(2) has caused significant concern. General points have been raised about the potential breadth of the offence. The submission to us from Freedom from Torture noted its “apparent absurdity”:

Indeed, on its natural reading, “facilitating” the arrival or entry of an asylum seeker would extend to lawyers and (some have suggested) even to immigration officials at the border.143

148.This does not seem to us to be a substantial concern, not least because the existing offence of facilitating entry or arrival “for gain” would also potentially cover lawyers (or even salaried immigration officials) if a stretched interpretation was adopted. What is far more troubling, and raises genuine fears in respect of Article 2 ECHR (the right to life), is the potential for the offence to cover the altruistic actions of persons saving lives at sea. By rescuing individuals crossing the Channel in dangerous small boats and bringing them to shore, there is little doubt that a person would be ‘facilitating their arrival’ in the UK. As a particularly stark example of the potential of this amendment, concerns have been raised in the media144 and in Parliament145 about the possibility of it resulting in the criminalisation of the actions of the Royal National Lifeboat Institution (RNLI).

149.While the Government has made clear that there is “no intention in this Bill to criminalise bona fide, genuine rescue operations by the [RNLI]”, which is encouraging, the key question is not the intention of the Bill but the effect should it become law.146 Given the exemption for persons acting on behalf of organisations that aim to assist asylum-seekers without charge, it is not clear whether the actions of the RNLI in rescuing migrants at sea would fall within the section 25A offence. The RNLI plainly intends to help asylum seekers if they find them during their rescue operations. Arguably, however, the RNLI’s aim is not to assist asylum seekers but simply to save lives at sea.147 We agree with submissions to us from Justice Studio, who said that “clarification is needed as to whether the primary and sole intent of the organisation must be to aid asylum seekers.”148

150.There remains a risk that one interpretation of the offence could cover the actions of the RNLI, and the actions of any other organisation that rescues migrants. Moreover, on any reading, genuine life-saving activities by individuals not acting on behalf of such an organisation would be caught by the offence. If clause 40 of the Bill becomes law, it is inevitable that those life-saving activities would fall within the offence under section 25A of the 1971 Act, as long as their result was the arrival of an asylum seeker in the UK.

151.Furthermore, the offence under section 25 of the 1971 Act, which if clause 39 of the Bill was passed would cover the facilitation of an asylum seeker’s arrival in the UK without a visa, does not contain any such exception for organisations that aim to assist asylum-seekers without charge. Thus, the same concerns arise in respect of the criminalisation of individuals engaging in altruistic life-saving activities but they also arise in respect of organisations such as the RNLI. There is nothing on the face of the Bill or the 1971 Act to prevent this offence being charged where an individual or an organisation, such as the RNLI, carries out life-saving activities that result in an asylum seeker arriving in the UK without a visa.

152.It is recognised that prosecutorial discretion could and should prevent charges being laid when an offence has been committed in the course of genuine life-saving activity.149 The common law also provides for a general defence of ‘necessity’, which may apply where a defendant has committed an offence to prevent the death or serious bodily harm of another person.150 Nevertheless, on the face of the Bill there is plainly a risk that the changes made to the offences of facilitating illegal entry and facilitating the arrival of asylum seekers in the UK would criminalise life-saving activities.

The right to life

153.The amendments proposed in clause 39(4) and clause 40 raise considerable concern on human rights grounds because they would result in the criminalisation of those who provide altruistic assistance to asylum seekers, which could be hard to reconcile with the UK’s obligations under the Refugee Convention. But even more starkly, these amendments raise serious questions of compatibility with the fundamental human right to life.

Safety of life at sea

154.Most obviously, legislation that could criminalise acts taken to save lives at sea is inconsistent with the specific, internationally binding rules to protect the safety of life at sea contained in the SOLAS, UNCLOS and Salvage Conventions, particularly the explicit duties to aid those in distress at sea.151 As previously noted, UNCLOS imposes an obligation on states to require masters of ships flying their flag to inter alia “render assistance to any person found at sea in danger of being lost”152 while the Salvage Convention explicitly requires the state to “adopt the measures necessary to enforce the duty” to “render assistance to any person in danger of being lost at sea”.153 Introducing the possibility that life-saving actions could result in criminal prosecution not only contradicts these requirements but is liable to actively dissuade individuals and organisations from taking such actions and complying with these duties.

155.The fact that the duty to render assistance in SOLAS is reflected in domestic legislation in the Merchant Shipping (Safety of Navigation) Regulations 2020 means that the Bill’s amendments to the facilitation offences also appear to contradict existing UK law. This creates uncertainty which, at the very least, will damage compliance with the duty to render assistance and thus put at risk the right to life. Uncertainty also undermines one of the key requirements of the rule of law: that the law is accessible and so far as possible, intelligible, clear and predictable.154

ECHR and ICCPR

156.As discussed above, Article 2 ECHR positively requires the State to adopt laws and practices to safeguard the right to life. This extends to a positive obligation on States to have an adequate legislative and administrative framework in place to protect lives at sea.155 Introducing legislation that is likely to have the effect of dissuading persons from taking action that could avoid a real and immediate risk to life, such as that which faces any person making a Channel crossing in an obviously unsuitable vessel, is inconsistent with this obligation.

157.A further element of the positive obligation under Article 2 ECHR is an operational obligation on all public authorities to take all reasonable steps to avoid a real and immediate risk to life of which they have, or ought to have, knowledge. While this operational obligation is binding on public authorities, not private actors, introducing a criminal offence that could dissuade anyone from taking action to avoid a real and immediate risk to life is hard to reconcile with this duty.

158.The obligations under Article 2 ECHR are mirrored by obligations under Article 6 ICCPR,156 which has been found to have been violated by a failure by Italy to rescue migrants in distress.157

159.The implications of the Bill’s proposed amendments to the criminal offences of facilitating a breach of immigration law and facilitating the arrival of asylum seekers are even more troubling when considered together with the proposed use of ‘pushbacks’ as a method of maritime enforcement. As discussed above, pushbacks pose a real risk to the lives of those crossing the Channel in small boats. Coupling actions that pose a danger to life with criminal penalties that could dissuade people from taking action to save lives puts the right to life itself fundamentally at risk.

160.The proposed changes to the offences of facilitating a breach of immigration law, under section 25 of the 1971 Act, and facilitating the entry or arrival of an asylum seeker, under section 25A of the 1971 Act, pose an unacceptable risk of criminalising altruistic and life-saving actions. They are inconsistent with international obligations to protect and save lives at sea, and with the fundamental right to life under Article 2 ECHR. Concerns about irregular migration cannot justify legislation that puts lives at risk. To ensure compliance with international human rights obligations, and in particular the right to life, clause 39(4) and clause 40(2) must be removed from the Bill.

111 Explanatory Notes to the Nationality and Borders Bill [Bill 141 (2021–22)-EN] para 388

116 A resettlement scheme is a scheme by which the UK, working together with the UNHCR, identifies refugees in refugee camps, informal settlements and host communities outside the UK and brings them to the UK for resettlement. Refugees are then matched to a local authority that can provide suitable accommodation and support. The refugees are given leave to come to the UK and on their arrival they are granted indefinite leave to remain and refugee status. In August 2021 there were three resettlement schemes in operation: The UK Resettlement Scheme (UKRS), Community Sponsorship Scheme, and Mandate Resettlement Scheme ( For more detail, see the Home Office’s UK Refugee Resettlement: Policy Guidance, August 2021).

117 Asylum Statistics, House of Commons Library Research Briefing, 13 September 2021

119 Freedom from Torture (NBB0041)

120 Which the UK has an obligation to implement in good faith under Article 26 of the Vienna Convention on the Law of Treaties.

122 Clause 34 of Part 2 of the Bill, proposes a new binding statutory interpretation of Article 31 of the Refugee Convention which includes the following: “A refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened if, in coming from that country, they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country.” (emphasis added)

126 A summary conviction is a conviction in the Magistrates Court rather than the Crown Court. The Magistrates Court generally deals with less serious offences and imposes lower penalties. More than 90% of all criminal offences are dealt with in the Magistrates Court.

129 Freedom from Torture (NBB0041)

133 Migration Watch UK (NBB0040)

134 The Code for Crown Prosecutors requires them to be satisfied that a prosecution is in the public interest before it is pursued. CPS Legal Guidance, Immigration, 19 June 2018, provides that “In cases where a statutory defence is not available to a refugee, the purposive and humanitarian aims of the Refugee Convention as set out in Asfaw should be borne in mind when considering the public interest.”

137 Section 72(2) of the Nationality, Immigration and Asylum Act 2002

139 A recent judgment of the Court of Appeal has confirmed that an offence under section 25 of the 1971 Act can be committed in relation to the illegal entry of an asylum seeker, despite the existence of the separate offence of helping an asylum seeker enter the UK at section 25A - R v Kakaei [2021] EWCA Crim 503, upholding the decision in R. v. Bina [2014] EWCA Crim 1444.

140 This was recently confirmed in CPS legal guidance: Immigration: Organised Facilitation – Vehicles and Boats, 8 July 2021 which states: “in cases involving the use of a boat where the sole intention is to be intercepted by BF at sea and brought into port for asylum claims to be made, no breach of immigration law will take place. This is because those on board will be escorted and detained, granted immigration bail when considered appropriate and/or subsequently removed, with the likelihood of no entry in law being made. The same applies where the intention is to sail the boat to a designated port of entry in order to claim asylum. These issues were emphasised in the case of Kakaei [2021] EWCA Crim 503.”

141 Given that persons crossing the Channel in small boats are generally doing so because there is no legal alternative for them to reach the UK, it can be assumed that a person who helps small boat passengers reach the shore of the UK would have, at least, “reasonable cause for believing” that they would be arriving without valid visas.

142 For example Wolverhampton City of Sanctuary (NBB0023): “We also have concerns about these proposals; for example if our charity volunteer gives assistance, such as providing free accommodation to a homeless and destitute person who has yet to seek asylum, will this be classified as facilitating irregular entry?”

143 Freedom from Torture (NBB0041)

145 For example: HC Deb, 20 July 2021, col 854

146 HC Deb, 20 July 2021, col 915

147 RNLI, Our philosophy, accessed 18 November 2021

148 Justice Studio (NBB0034)

149 The CPS applies a test to ensure that prosecutions are only pursued when there is sufficient evidence available and, significantly for these purposes, when it is in the public interest to do so (the Code for Crown Prosecutors)

150 A full discussion of this defence appears in In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147

151 See Chapter 3 above

152 Article 98(1)

153 Article 10

154 This is the first of the defining elements of the rule of law identified by Lord Bingham in his book “The Rule of Law”, Allen Lane, 2010.

155 Paragraph 38 above

156 The right to life under Article 6 “includes an obligation for States parties to adopt any appropriate laws or other measures in order to protect life from all reasonably foreseeable threats. …such due diligence require taking reasonable, positive measures that do not impose disproportionate burdens on States parties in response to reasonably foreseeable threats to life.” AS and others v Italy CCPR/C/130/DR/3042/2017, para 8.3.

157 AS and others v Italy CCPR/C/130/DR/3042/2017




Published: 1 December 2021 Site information    Accessibility statement