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, see Clause 41 and Schedule 5. In so doing it seeks powers to stop, board, divert, and detain foreign ships and ships without nationality (i.e. small boats) crossing the English Channel carrying people seeking asylum, see my Post In the Footsteps of Sir Francis Drake: Home Office Plans for the Seas in the Nationality and Borders Bill.

Now, by amendments laid at the Committee Stage of the Bill in the House of Commons, the Home Office seeks to remove a vital safeguard in the Bill that ensures compliance with the duty of rescue where people are in danger of harm or loss of life in such operations.

The Nationality and Borders Bill as introduced to Parliament

When the Bill was introduced into the House of Commons it contained the safeguard that the authority of the Secretary of State was required before an immigration officer or an enforcement officer could exercise powers 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 the Channel Islands, Isle of Man, or a British overseas territory

Authority could be given only if the Secretary of State considered that the 1982 United Nations Convention on the Law of the Sea (UNCLOS) permits the exercise of powers in relation to the ship in question (see Schedule 5, paragraph 2 of the Bill, inserting section 28LA (3) and (4) into the Immigration Act 1971). UNCLOS contains a large number of provisions, some of which are concerned with freedom of navigation and the limited circumstances in which it may be curtailed. It is also contains provision for the duty of rescue.

As UNCLOS contains provision for the duty of rescue, it follows that the Secretary of State’s consideration of whether UNCLOS permits an operation by Home Office vessels against a ship (small boat carrying people seeking asylum) includes not only consideration of freedom of navigation but also consideration of the duty of rescue and how to safeguard it. In an operation Home Office vessels would be seeking to board and/or divert the ship and so the Home Office’s tactics and operational plan might otherwise be inconsistent with UNCLOS were the duty of rescue not to be considered. Thus, the duty of rescue would necessarily need to be part of the planning and preparation of any operation before it was authorised by the Secretary of State. The continued inclusion in the Bill of the UNCLOS safeguard would help ensure fulfilment of the duty of rescue by Home Office vessels engaged in the English Channel and elsewhere.

However, by an amendment (no 24) brought forward for consideration by the House of Commons Public Bill Committee and published on 14 October 2021, the Government seeks to remove this vital safeguard. Its effort should be opposed.

The Duty of Rescue and the Law of the Sea

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. For a fuller consideration of the duty of rescue in UNCLOS, see my Post International Legal Obligations that Cut Across UK Maritime Enforcement Provisions in the Nationality and Borders Bill . Further, the duty of rescue applies to Home Office vessels as much as any other vessel. Home Office vessels engaging in boarding and diverting a ship (small boat carrying people seeking asylum) will be subject to the duty of rescue, where one of the criteria set out above applies.

The Significance of the Attempt to Avoid the Duty of Rescue

The removal of the safeguard of mandatory consideration of UNCLOS requirements before the Secretary of State authorises the use of maritime enforcement powers against a ship (small boat carrying people claiming asylum) will have consequences for any and all the material obligations that UNLCOS imposes. In particular, as UNCLOS contains provision for the duty of rescue, it will remove mandatory consideration as to what the duty of rescue requires and how to safeguard that duty  as  part of the planning and preparation of any operation by Home Office vessels.

The removal of this vital safeguard needs to be seen alongside two other measures.

First, the attempt to immunise Home Office officials from criminal and civil liability arising out of its maritime enforcement operations. As a matter of principle, the Home Office ought to be accountable for any harm to life and limb caused by its actions. However, as matters stand, it seeks to exempt its officials from criminal and civil liability, see Paragraph 10 of Schedule 5 to the Nationality and Borders Bill. Under the Bill, a relevant officer is not liable in any criminal or civil proceedings for anything done in the purported performance of maritime enforcement functions if the court is satisfied that the act was done in good faith, and there were reasonable grounds for doing it.

Second, by a further amendment (no 25) put down before the House of Commons Public Bill Committee on 14 October 2021, the Home Office seeks to remove the requirement that the Secretary of State may give authority to an officer to require a ship (small boat carrying people seeking asylum) to be taken to another state or other British territory only if that state or territory is willing to receive the ship. In other words, the Home Office may require a vessel carrying people seeking asylum to leave UK waters and return to France without being required to check whether France is willing to receive the vessel.

In such circumstances, the authorisation of operations against fragile and insecure vessels,  without consideration of the duty of rescue or of whether France will receive them, will increase the risk of such vessels being left adrift in the Channel, with self-evident increase of risk to life and limb for the people concerned.