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

Conclusions and recommendations

Maritime enforcement and human rights

1.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. (Paragraph 46)

2.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. (Paragraph 50)

3.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. (Paragraph 53)

4.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. (Paragraph 54)

5.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. (Paragraph 55)

6.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. (Paragraph 59)

7.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. (Paragraph 64)

8.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. (Paragraph 68)

9.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. (Paragraph 70)

10.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. (Paragraph 70)

11.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. (Paragraph 73)

Maritime enforcement powers in the Nationality and Borders Bill

12.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. (Paragraph 85)

13.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. (Paragraph 86)

14.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.” (Paragraph 87)

15.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. (Paragraph 90)

16.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. (Paragraph 93)

17.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. (Paragraph 96)

18.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.” (Paragraph 96)

19.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). (Paragraph 98)

20.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. (Paragraph 98)

21.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. (Paragraph 100)

22.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”. (Paragraph 101)

23.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. (Paragraph 103)

24.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”. (Paragraph 111)

25.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. (Paragraph 111)

26.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. (Paragraph 113)

27.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. (Paragraph 113)

Criminalisation of asylum seekers and those who help them

28.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. (Paragraph 137)

29.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. (Paragraph 137)

30.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. (Paragraph 141)

31.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. (Paragraph 160)

32.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. (Paragraph 160)

Removals and notice periods

33.Overall, the Committee welcomes clause 45 as it provides a statutory guarantee of at least 5 working days’ notice before a person is removed, an increase on the 72hrs currently guaranteed in policy guidance and does not permit the use of ‘removal windows’. These changes provide greater protection for the right of access to justice and against unjustified removals to face human rights abuses taking place without legal challenge. It is important to recognise, however, that the Bill provides for a minimum period of notice, and that if more notice is required to ensure the recipient’s right to access justice is respected then more must be provided. (Paragraph 175)

34.It is also important that the power to remove a person who has been issued a priority removal notice without providing a notice period is not used in cases where the right to access justice requires notice to be given. The power of the Secretary of State to remove a person without further notice being given where a removal has previously failed must not be used in cases where a removal has failed for legitimate reasons or where the claimant’s right to access justice requires him or her to have additional notice. This power must not be relied upon to detain individuals on immigration grounds when detention is not necessary. (Paragraph 176)

35.The Bill should be amended to make plain that the right to access justice must be respected in any decision on providing notice to an individual liable to removal. It should also be emphasised in the policy guidance that accompanies the power to detain that detention should not be maintained for 21 days in advance of a removal date where that detention is not necessary and proportionate in the individual case. (Paragraph 176)

Immigration Detention and Bail

36.We are disappointed that the Government have not used the Nationality and Borders Bill as an opportunity to introduce independence into the immigration detention decision-making process. (Paragraph 182)

37.The Government must take action to ensure that people are not being detained unlawfully. (Paragraph 182)

38.The changes proposed in the Bill increase the risk that immigration detention will be used, and prolonged, where it is not necessary or proportionate. (Paragraph 190)

39.We recommend that clause 47 be removed from the Bill to improve safeguards against detention in breach of Article 5 ECHR. (Paragraph 190)

Published: 1 December 2021 Site information    Accessibility statement