Introduction

By its Nationality and Borders Bill, through new maritime enforcement powers, the Home Office seeks to extend its activity, beyond the United Kingdom territory, beyond UK territorial waters, and into international waters and into foreign waters. In so doing it seeks powers to stop, board, divert, and detain foreign ships and ships without nationality.

Before considering whether the proposed powers are compatible with international law commitments by which the UK is bound, such as international maritime law, human rights law, and the Refugee Convention, it is important to understand their scope and reach. While it may be unfair to compare those powers to the licence exercised by Sir Frances Drake in seizing Spanish treasure ships on the High Seas in the 16^th Century, the extent of the powers sought is a cause of concern, not just as regards compatibility with UK international law commitments but also as regards the impact of their use on international relations with countries such as France. That a French ship outside of UK waters may be boarded by UK immigration officers seeking to divert asylum seekers from reaching English shores has the capacity to impact adversely on Anglo-French relations. What is it that the Home Office is trying to do?

Existing Maritime Enforcement Powers in UK Territorial Waters

There are some existing maritime enforcement powers. By the Immigration Act 2016, which amends the Immigration Act 1971, the Home Office acquired powers to take to the sea to exercise immigration control. These existing powers concern immigration-related offences. Other maritime enforcement powers in relation to other matters are found in the Modern Slavery Act 2015 and the Police and Crime Act 2017.

Under the Immigration Act 1971, an immigration officer, a police officer, or an enforcement officer (a commissioned naval officer, or a person in command or charge of any aircraft or hovercraft of the Royal Navy, the Army or the Royal Air Force) is given powers –  in relation to UK waters –  as regards a United Kingdom ship, a ship without nationality, a foreign ship, and a ship registered under the law of another British territory (e.g. the Isle of Man). Such powers are only to be exercised for the purpose of preventing, detecting, investigating or prosecuting the specified immigration-related criminal offences: helping an asylum seeker to enter the UK, assisting unlawful immigration, and assisting entry to the UK in breach of a deportation order or exclusion order.

As a check on the use of these powers, the authority of the Secretary of State is required before an immigration officer, a policeman, or an enforcement officer is able to exercise them in relation to a foreign ship, or a ship registered under the law of a British territory. Further, authority may only be given in relation to a foreign ship if the 1982 United Nations Convention on the Law of the Sea permits the exercise of those powers in relation to that ship.

Under existing powers, where a relevant officer (immigration officer, police officer or enforcement officer) has reasonable grounds to suspect that a specified immigration-related criminal offence is being, or has been, committed on the ship, 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.

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

New Maritime Enforcement Powers in the Nationality and Borders Bill

The Nationality and Borders Bill (by clause 41 and Schedule 5) seeks to modify existing maritime enforcement powers found in the Immigration Act 1971 and to insert new ones.

As provided for in the Bill, an immigration officer or an enforcement officer may exercise specified powers:

• in United Kingdom waters,
• in foreign waters, or
•  in international waters.

Those powers may be exercised in relation to:

• a United Kingdom ship,
• a ship without nationality,
• a foreign ship, or
• a ship registered in another British territory.

Such powers may only be used for the purpose of preventing, detecting, investigating or prosecuting a relevant immigration-related offence.  

As a check on the use of these powers, the authority of the Secretary of State is required before an immigration officer or an enforcement officer is able to exercise them in relation to:

• a United Kingdom ship in foreign waters,
• a ship without nationality,
• a foreign ship, or
• a ship registered under the law of a British territory.

Further, authority may only be given if the 1982 United Nations Convention on the Law of the Sea permits the exercise of those powers in relation to that ship.

As regards the existing maritime enforcement powers in the Immigration Act 1971 (see above), their use is now to be restricted to police officers (and no longer to immigration officers and enforcement officers).

A New Definition of Ship

The definition of ‘ship’ is broadened in the Bill so that it extends to fragile and insecure vessels that cross the English Channel. Presently ‘ship’ is defined so that it includes every description of vessel (including a hovercraft) used in navigation. That definition is to be supplemented so that ship also includes any other structure (whether with or without means of propulsion) constructed or used to carry persons, goods, plant or machinery by water.

The Francis Drake Clause  – Seizing Ships and Property

In the Bill, immigration officers are given new powers to seize and  dispose of a ship and its property on the authority of the Secretary of State, if they have reasonable grounds to suspect that it has been used in the commission of a relevant immigration-related criminaloffence and the ship is in UK waters or otherwise in the UK. These powers go further than those found in the Immigration (Disposal of Property) Regulations 2008 made under the UK Borders Act 2007.

Where the ship seized is a ship without nationality, the Bills allows the Secretary of State to dispose of that ship and other property or retain it after 31 days from the day of seizure. The means of disposal include the sale and destruction of the ship and property.  

Pushing Back Asylum Seekers

Thereafter, the Bill expands powers to stop, board, divert and detain a ship. If a relevant officer has reasonable grounds to suspect that a relevant immigration-related offence is being, or has been, committed on theship, or the ship is otherwise being used in connection with the commission of such an offence, they may:

• stop the ship,
• board the ship,
• require the ship to be taken to any place (on land or on water) in the UK or elsewhere and detained there; and/or
• require the ship to leave United Kingdom waters.

The power is broad enough to allow the relevant officer to require a ship carrying Asylum Seekers across the English Channel to be diverted away from the UK and back to France.

Where a ship is required to be taken to any place, the relevant officer may require any person on board that ship to take such action as is reasonably necessary to ensure that person is taken to that place or to any other place determined by the relevant officer. And where a ship is required to leave UK waters, the relevant officer may require any person on board the ship to take such action as is reasonably necessary to ensure that person leaves United Kingdom waters.

The authority of the Secretary of State is required before a relevant officer may exercise the power to require the ship to be taken to any place within a state other than the UK, or within a British territory. Further, the Secretary of State may give such authority only if the State, or the relevant British territory, is willing to receive the ship. So much will depend on the stance of the French authorities in respect of Channel crossings.

But a relevant officer acting in relation to a foreign ship or a ship registered under the law of a relevant British territory may require the ship to be taken to the following places without the Secretary of State’s authority:

• a place in the state or relevant British territory in question, or
• if the state or British territory requests, a place in any other state or relevant British territory willing to receive the ship.

The problem with the power to divert ships bound for the UK is that it raises profound questions as to the safety and well-being of the people on board those ‘ships’ (remember that ships are defined to include the most fragile of vessels, see above) and ultimately questions as to the risk to their lives. It is all very well to say that the diversion of a ship will only occur where safe. But how is that to be policed and enforced? Further, no doubt there may be an intention to act in accordance with international law.  But such intentions are only likely to be assessed meaningfully in retrospect, once people have been harmed.

 It is clear that even the Home Office have concerns that their tactics may lead to risks to life and limb and thus to the commission of criminal acts by relevant officers, as the Bill immunises them against and criminal and civil court proceedings. Under the Bill, a relevant officer is not liable in any criminal or civil proceedings for anything done in the purported performance of these functions if the court is satisfied that the act was done in good faith, and there were reasonable grounds for doing it.

Finally, in addition to new powers to stop, board, divert and detain a ship, the Bill also contains connected powers to search and obtain information; powers of arrest and seizure; powers of to conduct protective searches of persons; and powers to search for nationality documents.

As noted above, the powers proposed raise issues as to their compatibility with international law commitments by which the UK is bound, such as international maritime law, human rights law, and the Refugee Convention. Those issues are important and deserve discrete consideration.