Introduction

The Home Office proposal to expand its maritime enforcement powers in relation to immigration control is substantial and of concern, see my Post In the Footsteps of Sir Francis Drake: Home Office Plans for the Seas in the Nationality and Borders Bill. Its motivation for seeking these powers is to stop people crossing the English Channel in small vessels to seek asylum in the UK. The proposals are framed so as to support the prevention of immigration-related criminal offences but they have a direct impact on people lawfully seeking international protection in the UK.

The Home Office plans to use its own vessels and other UK Government vessels to stop, board, divert and detain those vessels making Channel crossings. When using the new powers, the Home Office would be able to require a vessel to be taken to any place in the UK or elsewhere (such as France) and/or require it to leave UK waters. Would the use of such powers be compatible with existing UK international law commitments as regards the law of the sea, human rights law, and the Refugee Convention? There are obvious risks that it would not be.

The Risk to Life and Limb

The power to divert vessels bound for the UK raises profound questions about the safety and well-being of the people on board them, including about the risk to life. It is all very well to say that the diversion of a vessel 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.

The Protection of International Law

The Bill provides that that the authority of the Secretary of State is required before an immigration officer or an enforcement officer is able to use powers in relation to a UK ship in foreign waters, a ship without nationality, a foreign ship, or a ship registered under the law of a British territory. It also states that such authority may only be given if the United Nations Convention on the Law of the Sea (UNCLOS) permits the exercise of those powers in relation to that ship. But what is the scope of the UNCLOS obligations? And how are its obligations to be supervised and enforced? 

Further, why are other relevant international obligations not also deployed on the face of the Bill? There are a number of other international treaties by which the UK is bound that concern the safety of navigation and related issues or international human rights protection. Among them are:

• The International Convention for the Safety of Life at Sea (SOLAS)
• The International Convention on Maritime Search and Rescue (SAR)
• The International Convention on Salvage
• The International Regulations for Preventing Collisions at Sea
• The European Convention on Human Rights
• The Refugee Convention

Finally, compliance with international law when conducting diversion operations is only likely to be assessed meaningfully in retrospect, once people have been harmed. That is not a good outcome where people’s lives and well-being may be at stake. With that in mind, what does UNCLOS provide?

The United Nations Convention on the Law of the Sea (UNCLOS) – The Duty of Rescue

There are duties in respect of rescue of persons at sea (Article 98, UNCLOS).

The first duty is that every 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:

• to render assistance to any person found at sea in danger of being lost,
• to proceed with all possible speed to the rescue of persons in distress if informed of their need of assistance, in so far as such action may reasonably be expected of him, and
• after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.

The second duty is that every coastal state (such as the UK) shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring states for this purpose.

The first duty reflects the well-established position in customary international law. It applies in international waters and there is an analogous provision to like effect applicable in UK territorial waters (Article 18(2), UNCLOS). Critically, there are no public policy limitations on the duty. Therefore, it follows that the fact that a person seeking asylum in the UK may be committing an immigration-related criminal offence in crossing the English Channel makes no difference. There is still a duty to rescue them if they are in danger of being lost, if they are in distress and have sought assistance, or after a collision. The sole exception to the duty of rescue, is where there is serious danger to the ship, its crew or its passengers in complying with its duty of rescue.

It cannot be stressed enough that even those considered to be committing immigration-related criminal offences under UK law by crossing the English Channel will be owed this duty of rescue by a ship, where one of the three circumstances outlined above is engaged.

Further, that duty applies to the vessels of the UK Government itself. Thus, a Home Office vessel engaged in trying to divert an insecure vessel carrying people seeking asylum is also subject to this duty of rescue. Thus, for example, where a Home Office vessel attempts to divert a vessel carrying persons in distress and those persons have informed the Home Office vessel of their need for assistance, the Home Office vessel itself is obliged to rescue them. Similarly, the Home Office vessel would be subject to a duty of rescue after a collision, say between the vessel and the Home Office vessel. And lastly, the Home Office vessel would be subject to a duty of rescue where lives were in danger of being last.

By now the legal mess the Home Office have got themselves into by seeking these new maritime enforcement powers will have become clear. Where one of the three circumstances set out in Article 98(1) UNCLOS arises (see above), the duty of rescue (i) applies regardless of whether or not the people seeking asylum are committing UK immigration-related criminal offences in crossing the English Channel, and (ii) applies to the Home Office’s own vessels where they are engaged in diversion operations.

If the Home Office and the vessels under its direction were to be foolish enough to engage in diversion operations that contributed to injury, harm, or loss of life, the legality of their actions would not simply be a question of civil and criminal liability (note in this regard the attempt to immunise themselves from both in the Bill) but also of compliance with international law obligations justiciable by virtue of the references to UNCLOS in the proposed legislation.

After Rescue: Landing Rescued People in Places of Safety

Once people have been rescued by a ship, they must be treated in accordance with applicable human rights and, of necessity, taken to a place of safety. As regards rescue in the English Channel, if France is not available as a place of safety for a legal reason or a practical reason such as French refusal to consent, that place will have to be the UK.  

In addition, although UK law provides that France is a safe country, as a matter of international law, it should be observed that a person rescued at sea cannot be returned to any country contrary to the international law principle and peremptory norm of non-refoulement, given concrete form in the 1951 Refugee Convention, Article 33(1) of which provides:

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion

That same international law principle also arises in human rights law (the European Convention on Human Rights (ECHR)):

114. However, expulsion, extradition or any other measure to remove an alien may give rise to an issue under Article 3 of the Convention, and hence engage the responsibility of the expelling State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country…

(Hirsi Jamaa and Others v Italy (Application no. 27765/09), judgment of the European Court of Human Rights)

Refugee Convention obligations may also be engaged where that Convention’s purpose is frustrated by Home Office diversion action in the English Channel or penalties are imposed. Such matters require separate consideration.

Human Rights and the Duty of Rescue

Where people are rescued or seek rescue by a vessel subject to the UK jurisdiction, such as:

• where a Home Office vessel is obliged to rescue distressed people seeking asylum from their insecure vessel, or

• where the Home Office take enforcement action against the vessel of a third state or an unflagged vessel of no nationality),

the European Convention on Human Rights (ECHR), as applied in UK law by the Human Rights Act 1998, may be engaged on an extra-territorial basis to protect human rights including the right to life (Article 2 ECHR). In Hirsi Jamaa and Others v Italy the European Court of Human Rights stated:

80. In that connection, it is sufficient to observe that in Medvedyev and Others, cited above, the events in issue took place on board the Winner, a vessel flying the flag of a third State but whose crew had been placed under the control of French military personnel. In the particular circumstances of that case, the Court examined the nature and scope of the actions carried out by the French officials in order to ascertain whether there was at least de facto continued and uninterrupted control exercised by France over the Winner and its crew (ibid., §§ 66-67).

81. The Court observes that in the instant case the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion

In its action at sea in the English Channel, UK Government vessels concerned in maritime enforcement and diversion operations may encounter those in need of rescue. Where they do so they will be under a positive obligation arising under the ECHR to assist those people seeking asylum who are at risk of losing their life or at risk of harm in vessels that are the object of that enforcement action.

Conclusion

As has been shown, the use of maritime enforcement powers sought by the Home Office may lead to violations of existing UK international law commitments as regards the law of the sea, human rights law, and the Refugee Convention. Most importantly, through the use of such powers, there may be a risk of harm or even loss of life to people crossing the English Channel in order to seek asylum. Such people deserve better than after-the-event disputes between lawyers as to whether the Home Office acted lawfully in a given incident; they deserve rescue and for their lives not to be made more difficult through misconceived Home Office action.