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Part 6 of the Immigration Bill


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The second reading of the Immigration Bill in the House of Commons is today. We have seen how even more appeals will be out of country under its regime, and the greater powers given to immigration officers under Part 3. Part 6 – including Schedules 7 and 8 – offers a mix of provisions, including ensuring the UK complies with international law on blacklisted persons and introduces civil penalties for aircraft and airport managers if they do not ensure people go through control zones. The final section gives a raft of new powers to immigration officers (where have we seen that before?), this time to intercept and detain boats suspected of carrying undocumented migrants, and to arrest anyone suspected of facilitating illegal migration in to the UK.

The first two sections of Part 6 give effect to Schedule 2, Schedule 7 and Schedule 8. The third and final section inserts a new section into section 8B of the Immigration Act 1971. Section 8B deals with those whom the UN or the EU have put on travel blacklists. The aim of this section is to firm up borders and close loopholes with which those on EU or UN blacklists might enter the UK. Section 37(4) provides that any leave to enter given to those on a blacklist is invalid; section 37(5) curbs exemptions from immigration control for mariners, aircrew, those whom the Secretary of State has ordered exempt from immigration control, and those on diplomatic missions, who are on a blacklist. So now the blacklist trumps even these.

Section 37(8) of the Immigration Bill amends section 8B of the Immigration Act 1971. It provides that if refusing a blacklisted person leave to enter or remain in accordance with the provisions of that section of the Act would breach either the European Convention on Human Rights or the Refugee Convention, then that section will not apply to them. This ensures that the UK will respect its international obligations in relation to those who have been blacklisted.

Perhaps those of our readers with a keen eye on national security might question why blacklisted persons, often due to terror offences, should be allowed to enter or stay notwithstanding their refugee status, family life in the UK, or risk of torture in the country they would otherwise arrive at. This is an important question. One answer is that a judge would subject their claim to be protected under the ECHR to the utmost scrutiny given their blacklisting and consequent public risk, so that only the strongest of claims will outweigh the public interest inherent in, for instance, Article 8 claims. Furthermore, just as the UK government should not subject anyone to torture or death within the UK, so neither should they allow them to depart from the UK to a country where that is what they face. But this is a theoretical debate on first principles: the brief answer is that prohibition of torture is absolute in international law, so not even blacklisted persons can be sent to where they risk torture or death.

This means that secondary legislation is no longer required to give effect to a UN Security Council Resolution or instrument of the Council of the European Union. They will have automatic effect in the UK.Explanatory Notes to the Immigration Bill

Schedule 7, paragraph 28 introduces two civil penalties:

  1. On the owner or agent of an aircraft who fails to take all reasonable steps to ensure that passengers embarking and disembarking do so within the control area, observing the relevant conditions or restrictions.
  2. On any person managing an airport in the UK if they fail to take all reasonable steps to ensure that the conditions or restrictions regarding control areas in an airport are adhered to.

Paragraph 28A requires the Secretary of State to issue a code of practice with regard to the penalties above, to be followed by those within the ambit of the offences.

If the Home Office deems you liable to the penalty, they will give you a notice to that effect (28B), enforceable as if it were a county court order (28E). You then should raise an objection in writing giving reasons (28C). You can only appeal if you have submitted a written objection (28D).

These civil penalties are aimed at ensuring that no-one sneaks through the airport and disappears from the system. This is a key facet of a coherent immigration and asylum policy. The problem with this one-sided approach is that there are no credible resettlement schemes and no humanitarian visas to go along with it. Schedule 8 displays this problem even more starkly.

Schedule 8 has two main parts.

The first amends the offences in the Immigration Act 1971, for instance helping an asylum seeker to enter the United Kingdom, to include assisting the attempted versions of the crimes outlined. So ‘arrival’ will be amended to ‘arrival or attempted arrival’, and entry will be ‘entry or attempted entry’.

The second gives yet more powers to immigration officers. Only this time, the immigration officers will work with the navy, and have been given powers previously reserved only for the navy, rather than the police as provided in Part 3.

These powers include boarding, diverting and detaining any ship which they have reasonable grounds to suspect it is being used to facilitate a breach of immigration law (s13); searching the ship and anyone on it for evidence relating to immigration offences, weapons, and nationality documents, and to retain any such evidence (s14, 16 and 17); to arrest anyone on the ship without a warrant who the officer reasonably suspects of being guilty of an immigration offence (s15). An officer may use reasonably force to carry out these functions, if necessary (s19).

This is being done in the name of destroying the business of smugglers.

Security at the border is our priority and we need our officers to have powers to stop these criminal gangs attempting to smuggle people into Britain.James Brokenshire, Immigration Minister

The government has a stern focus on the business of the smugglers, who charge exorbitant amounts for desperate people to cross the Mediterranean. This is to be welcomed, as these smugglers care nothing about conditions on the boats or their safety. The prices are such that only those with money can afford to cross to Europe; the others remain in the region, either in refugee camps or in danger.

The government’s operation is in line with the co-ordinated international response to destroy traffickers’ business recently adopted by the UN, allowing international vessels to inspect any vessels they reasonably suspect of being used to smuggle people across the Mediterranean. The EU’s naval initiative, Operation Sophia, criticised for not working alongside the African countries affected by it, works along similar lines.

These schemes hurt refugees as well as the business of the smugglers. After all, once the boat they are in has been ‘neutralised’ (this is genuinely the term used), they will likely to be taken to a refugee camp outside Europe. So they will be back where they started, except up to £3,000 worse off. Unfortunately where there are desperate people who will do almost anything to get out of the situation they are in, there will be smugglers taking advantage of that. The only other ways to counter the smugglers’ business would be a co-ordinated international resettlement scheme, which unfortunately seems remote, or solving the crisis in Syria (and in Eritrea, Afghanistan, Pakistan, and so on), which is even more remote.

At the international level, the European level, and now the national level, the focus is on stopping the boats of migrants reaching European and English shores, rather than delivering a proper resettlement scheme lifting our humanitarian weight. This speaks volumes of stronger countries that would rather the refugee crisis were someone else’s problem, and are willing to threaten trade deals with migrants’ countries of origin to make sure they are their problem. The welfare of the refugees and migrants themselves are barely factored into the equation.

The Permanent Representative of Venezuela to the United Nations hit the nail on the head in his speech explaining Venezuela’s abstention from the UN Resolution above:

Beyond fighting criminal activity, the text aimed to prevent people from reaching a safer destination through imposing “a policy of walls” that separated rich countries from seeing the tragedy of those afflicted by war.  Those people’s human rights must prevail above a concept of security that endangered victims.

If these provisions mean that those on the boats in English waters, including asylum seekers, are pushed directly back to where their fundamental rights may be abused, this may soon be an arguable breach of Article 13 ECHR (right to an effective remedy), after the European Court of Human Rights delivers judgment in ND & NT v Spain. Watch this space.

To sum up, Part 6 of the Immigration Bill ensures that those on travel blacklists are dealt with in accordance with international law, civil penalties for those working in air travel, and allows boats reasonably suspected of smuggling migrants into England to be boarded and searched, while those on the boat may be arrested. Many of these provisions will be beneficial to the immigration system. However, the greater powers given to immigration officers at sea appear to hurt refugees as much as the smugglers exploiting them. A credible international resettlement scheme is beyond due.

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Paul Erdunast

Paul Erdunast is a barrister at Temple Garden Chambers in London (https://tgchambers.com/member-profile/paul-erdunast/). Prior to this he was Legal and Parliamentary Officer at ILPA, where he delivered immigration law training and spoke at conferences. In previous jobs he lectured on asylum law and provided EU migrants with immigration advice.