The Nationality and Borders Bill: Closing Space for Humanitarian Assistance at Sea

On 6 July 2021, the UK Government published the Nationality and Borders Bill, Bill 14 of 2021-22. Secretary of State for the Home Department Priti Patel, who sponsors the Bill, described its motivation as follows:

The British people have had enough of open borders and uncontrolled immigration; enough of a failed asylum system that costs the taxpayer more than £1 billion a year; enough of dinghies arriving illegally on our shores, directed by organised crime gangs; enough of people drowning on these dangerous, illegal and unnecessary journeys […].

The Bill has gone through 1^st and 2^nd readings in the House of Commons and, at the time of writing, is with the Public Bill Committee, which is due to report to the House of Common by 4 November 2021.

The Bill has elicited sharp criticisms from international organizations like the United Nations High Commissioner for Refugees and professional bodies like the Law Society of England and Wales, which express concerns about its operability and compatibility with international law. Some further commentary has contextualized unauthorized sea arrivals in the UK compared to European countries, described the Bill’s creation of a two-tier asylum system, and illustrated the unworkability of several provisions.

This blog contributes to that analysis by concentrating on Articles related to assisting unlawful migrants and asylum seekers. I argue that these Articles risk closing space for humanitarian assistance at sea by criminalizing certain voluntary assistance while failing to provide for humanitarian exceptions. Such an analysis is prompted, in part, by an ongoing and heated public debate in the UK about migrant rescues at sea provided by the Royal National Lifeboat Institution (RNLI), assistance which has prompted some to call this organization a ‘migrant taxi service’ and others to open wallets in support, increasing donations by some 3,000%.

The Proposed Changes

There are two articles in the Bill relevant to assisting migrants and asylum seekers. Both track onto the Immigration Act 1971, proposing changes to Sections 25 and 25A respectively.

Article 37(4) of the Bill would amend the criminal offense of assisting unlawful immigration by expanding the definition of immigration law described at section 25(2)(a) of the Immigration Act to include non-nationals who enter “or arrive in” the State. According to the government’s explanatory note, currently “migrants who are intercepted at sea and are brought into an immigration control area may not have “entered” the UK unlawfully” (para. 397). What this means, and what the Bill seeks to address, is a situation where prosecutors are unable to charge a person who has facilitated an arrival, but not an entry, into the UK. Effectively, the proposed change broadens the offence of facilitation to additionally catch “those assisting persons to arrive in the UK without a valid entry clearance” (para. 397).

Article 38 of the Bill, titled “Assisting unlawful immigration or asylum seeker,” proposes two amendments to the Immigration Act. These proposed changes are, firstly, to the penalty associated with providing assistance – raising the ceiling of imprisonment for the offence from 14 years to “imprisonment for life” and, secondly, to the character of the individual providing assistance: Where the Immigration Act holds that “a person commits an offence if – he knowingly and for gain” facilitates the arrival into the UK of an asylum seeker, the Bill would remove the “for gain” language (the existing need to prove gain is underscored in a line of England and Wales Court of Appeal cases including Kapoor, Bina, and recently Kakaei). Article 38 has been referred to as a “Nicholas Winton” clause, as it seems to “slam the door” on efforts like those of Winton, a British businessman who organized the Kindertransport rescue of 669 Czechoslovakian children from Nazi persecution.

Impact of the Change in Legislation

These proposed changes sit within a broader context of certain European states bringing criminal suits against those assisting refugees and migrants at sea. In Greece, police have launched criminal cases against non-governmental organizations (NGOs) involved in facilitating foreigner entry into Greece and investigating abuses of migrants by Greek authorities. In Italy, prosecutors have brought criminal charges against NGOs and individuals in rescue operations in the Mediterranean Sea. Cusumano and Villa survey the Italian proceedings against NGOs in what they describe as the “criminalization of sea rescue NGOs in Italy.” Similar cases have also been brought in Malta.

The UK context, even with the proposed changes, is distinct given an existing exception to 25A(1) within the Immigration Act. Section 25(A)(3) notes that Subsection (1) “does not apply to anything done by a person acting on behalf of an organization which a) aims to assist asylum-seekers and b) does not charge for its services”. This caveat strongly suggests that organizations like the RNLI would not be caught up in the proposed changes. A tweet by the Home Office that this change “doesn’t apply to organisations such as HM Coastguard and RNLI helping those in distress at sea” and the Government’s explanatory note of the Bill, noting that:

“[i]t remains the case that this offence does not apply to persons acting on behalf of an organisation which aims to assist asylum seekers and does not charge for its services” (para 402)

reinforce this point. Other NGOs involved in search and rescue may be similarly protected by this provision.

Significantly, however, the change to the Immigration Act seems to create novel criminal liability for private vessels – like merchant, fishing or pleasure crafts – involved in rescues. Those not acting on behalf of an organization and voluntarily providing assistance could now face criminal liability as a result of these changes. Further, the proposed changes could ease prosecutions in the controversial and recently scrapped ‘hand-on-tiller’ cases, in which ‘pilot-migrants’ are charged with human smuggling for voluntarily piloting small boats across the channel. While statistics on rescues by private vessels in UK territorial waters are not readily available, globally, of the 152, 343 individuals rescued at sea in 2015, 20, 000 were aided by NGOs and 16, 000 by merchant ships.

Obligations under International Law

Under international treaty law and customary international law, the UK and its flagged-vessels have duties to perform rescues at sea. Mann stresses the particularity of the laws governing maritime space writing that they ascribe duties to “state agents as well as civil society actors”. And, unlike in the Mediterranean, where the allocation of duties to rescue is often obscured by limitations related to territorial jurisdiction, the obligations in the Channel are more clear, where the crossing from France to the United Kingdom is generally undertaken entirely within French or British territorial waters.

Under the United Nations Convention on the Law of the Sea (UNCLOS) – which has often been referred to as the “constitution of the oceans” – the UK has a duty to render assistance at sea. The UK is a State Party to UNCLOS and the present government has underscored its full commitment “to upholding its rules and securing the implementation of its rights and obligations”. Article 98 (1) states:

“[e]very 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”.

The Safety of Life at Sea Convention (SOLAS), of which the UK is also a State Party, similarly states at Regulation V-33,:

“[t]he 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 […]”.

The Salvage Convention, also ratified by the UK, establishes a duty to render assistance, stating at Article 10(1), “[e]very 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.” Papanicolopulu describes the duty to rescue those in distress at sea as “one of the best-established principles of the international law of the sea, maritime law and international humanitarian law” while Røsæg writes that, “non-assistance to refugees and migrants at sea is not a legal option.”

Against this international law backdrop, the proposed changes in the Nationality and Borders Bill risk thrusting UK-flagged vessels into a “Catch-22”: Assist those in distress and risk criminal liability, or do not assist and breach duties of international law.

Closing the Space for Humanitarian Assistance

A major concern with the Bill as regards the duty to rescue at sea is that it criminalizes voluntary assistance while failing to provide for a humanitarian exception. In itself, removing the “and for gain” language from the Immigration Act is not an entirely novel approach. The European Union Facilitative Directive, for instance, does not require there to be material benefit in order for an act to qualify as human smuggling when facilitating entry. However, the Facilitative Directive does provide for a humanitarian exemption, wherein Member States “may decide not to impose sanctions […] where the aim of the behaviour is to provide humanitarian assistance to the person concerned.” Sowing uncertainty through competing obligations, and closing the space for humanitarian assistance at sea, the Bill risks further endangering the lives of migrants, asylum seekers and British seafarers alike.

In light of the proposed Bill, private pleasure crafts are already being advised to avoid giving assistance to vessels in distress. The cruising manager of the Royal Yachting Association is quoted as saying:

“People believe you must render assistance at sea but you don’t have to if it puts your boat in danger. It sounds very harsh, but you could have a massive bureaucratic problem and be tied up in bringing illegal immigrant into the country. Our advice is stand off and report”.

Further, the proposed legislation risks endangering racialized seafarers and pleasure craft operators, who might not “look British”. There remains a mental element to the offence of assisting unlawful immigration that is unchanged by the Bill. The individual assisting must know or have reasonable cause for believing that the individual they are assisting to arrive in the UK is not a UK national (25(1)(b)). Without the cover of the “and for gain” condition, however, private seafarers may take overly broad impressions of who they ‘believe to not be a UK national’. Highlighting this risk to British seafarers is not intended to imply that any one life at sea is more valuable than any other, but rather to underscore that by expanding the liability to rescue some at sea, the proposed legislation also increases the risks to others at sea.

Other jurisdictions have worked to overcome this tension by reading humanitarian exceptions into similar legislation otherwise silent on such assistance. In Canada, for instance, s.117 of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) prohibits against “organizing, inducing, aiding or abetting people to come to Canada”. However, the Supreme Court of Canada in Appulonappa unanimously held this prohibition to be unconstitutional insofar as it “permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum seekers or assistance to family members” (para 5). The Court reasoned that the provision violated the Canadian Charter of Rights and Freedoms, being overly broad and catching “categories of conduct outside the provision’s purpose” (para 34). This position was elaborated on in Rajaratnam before the Court of Appeal for British Columbia (para. 173).

The Bill’s explanatory note frames the removal of the “for gain” condition as being driven by evidentiary difficulties. It notes that the Immigration Act currently requires the prosecutor to prove gain, but that this is challenging since gains “may be cash-in-hand, taken while abroad, or otherwise difficult to link back to facilitation” (para. 401). If the goal of the change is to ease prosecutors’ evidentiary burden, however, this can be accomplished in ways less endangering to lives at sea. Establishing a humanitarian exception is one such option.