The effect of the Nationality and Borders Act 2022 on the fishing industry

Changes made by section 43 of the Nationality and Borders Act 2022 will have a wide-ranging effect on UK maritime sectors and risks some vessels unintentionally incurring illegal working fines. This is because the changes alter some long established and fundamental concepts of UK immigration law concerning what it means to “enter” the UK.

The position before the Nationality and Borders Act 2022

Regular Free Movement readers may recall an article which I wrote some years ago, exploring how the UK fishing industry, among other maritime industries, engaged migrant crew to work from UK ports by virtue of the “transit visa” system. To my surprise, this article ended up being quoted in a few weighty publications, including House of Commons Library briefings.

To recap, a transit visa allows a crew member to enter the UK for the purpose of joining their vessel at a UK port. A visa (formally referred to as entry clearance) is not always required. For some nationalities, their country’s ratification of the ILO 108 convention on Seafarers’ Identity Documents means that seafarers can travel visa free and seek entry upon arrival to join their vessel. There is also a concession applying this to nationals of countries that have ratified the newer ILO 185 convention, having previously ratified ILO 108.

The list of countries which have ratified ILO 108 (or 185) is distinct from those countries which we are familiar with as “non-visa national” countries (i.e. countries that are not on this list).

The term “transit visa” is somewhat misleading. The permission which is granted to allow the crew member to join their vessel does not then regulate their subsequent stay in the UK. The transit visa part only really gets the crew member to their vessel. Despite this, it became a shorthand term of reference to describe the crew member’s status, which was in fact regulated by section 8 of the Immigration Act 1971.

Once here and having joined their vessel, by virtue of a transit visa or entry granted on arrival, a crew member is required to leave the UK on their vessel under the terms of the grant of permission to enter.

For ships operating from UK ports, such as offshore windfarm servicing vessels, oil and gas vessels, survey vessels and fishing vessels, section 8 provided a mechanism by which the vessel could return to a UK port without any migrant crew on board being troubled by the formalities of seeking permission to enter.

Upon returning to a UK port after its voyage, a vessel’s crew member could take advantage of section 8 which provides as follows (the parts in bold have been incorporated by the Illegal Migration Act 2023 through one of the few sections in force):

Disembarked crew could enter the UK and were exempt from the requirement to have leave to enter and to stay. They held no visas or documentation that confirmed this status. An immigration officer did not grant it although they could interrupt it by “examination” under schedule 2 of the 1971 Act. It had effect by operation of law subject to the exceptions listed at subsections a-d above.

Controversy arose in respect of operations by vessels with migrant crew within the UK’s territorial and internal waters, which extend to 12 nautical miles from the coastal baseline. In the UK government’s view, it was entitled to require migrant crew to have permission to work if operating inside UK waters, just as they would be required to have if they were working on land. However it was, in immigration law terms, quite difficult to regulate a prohibition on subsequent operations inside UK waters by crew members admitted to join vessels who relied on section 8.

This issue also arose for vessels which arrived from another place outside the UK, with migrant crew and particularly if the vessel commenced work in UK waters without arriving at a port or disembarking their crew.

The difficulty arose because of the concept of “entry” under section 11 of the Immigration Act 1971:

11. Construction of references to entry, and other phrases relating to travel.

(1) A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer;

There is no corresponding definition of what it means to leave the UK. The most sensible interpretation is that it is the opposite of disembarkation, i.e. it means to embark on a vessel which will then cross the coastal base line and depart (the ordinary legal definition of the UK does not include territorial waters beyond the baseline).

This means that, pre-NABA, if a vessel entered UK territorial waters to work, the migrant crew on board had not formally re-entered the UK as they had not disembarked or even arrived at a UK port.

This essentially nullified much of the legislation that might be used to prohibit work within the UK without the appropriate permission as the individual had not “entered”. They could not therefore be regarded as someone who, under the illegal working penalty system introduced by the Immigration, Nationality and Asylum Act 2006, “requires leave to enter or remain in the United Kingdom”.

Nor could they be liable to be prosecuted under the pre-NABA Immigration Act 1971 as someone who “knowingly enters the United Kingdom in breach of a deportation order or without leave”.

The prohibition on operations inside UK waters was enforced through reliance on policy guidance, which said that vessels should not operate “wholly or mainly” in UK waters with non-migrant crew. Regulating substantive immigration law through policy guidance gives rise to legitimate concerns (referring to the Supreme Court’s decisions in Alvi and Munir).

The introduction of the Nationality and Borders Act 2022

Section 43 of NABA fundamentally changes the position by altering the meaning of “arrival” and “entry” into the UK in certain circumstances by the insertion of new sections 11A and 11B into the Immigration Act 1971.

Section 11A of the Immigration Act 1971 creates a new concept of “offshore worker”. An offshore worker is a person who arrives in UK waters for the purpose of undertaking work in those waters, without first entering the UK. Under the new definition, “arrival”, in this regard, is taken to mean entering UK waters for the purpose of working. “Entry” occurs when this work has commenced. This subjects migrant crew and potentially their employers, to the full range of mechanisms available to prosecute and prevent work without permission, such as illegal worker penalties. It also provides the basis for amended offences under section 24 of the Immigration Act 1971 relating to illegal entry and arrival.

Offshore workers, as defined in section 11A, are specifically excluded from Section 8, so they may not enter without leave. Section 43 also gives the Home Secretary power to pass regulations requiring crew members, or if sponsored, their sponsor, to notify the Home Office whenever a vessel enters and leaves UK waters.

There are exceptions within section 43 for innocent passage or transit, and so the effect of section 8 is maintained when, whilst the crew may be “working” in UK waters, the vessel is merely passing through on its way to or from a UK port, or elsewhere. Therefore, vessels which operate from UK ports and solely work outside of UK waters are unaffected and can continue to utilise the transit visa system to have their crew join at a UK port and remain between voyages.

In the explanatory note to section 43 of NABA, as the bill was making its way through parliament, it was said;

Under the Immigration Act 1971 (“the 1971 Act”) a migrant with permission to enter or stay in the UK for a limited period may be subject to conditions such as restricting their work or occupation in the UK. This also applies to those working in UK waters, but the framework of the 1971 Act can give rise to confusion about the way in which these restrictions operate. This section will clarify the position.

The impact of the changes

As is so common, a statutory “clarification” in one regard often gives rise to further ambiguities or new questions. Section 43 is no different. The Act relies heavily on an inferred intention as a vessel must arrive in UK waters for the purpose of starting work in those waters and not be simply passing through. This rather suggests a degree of fact specific analysis.

Take, for example, a survey vessel on its way from a non-UK port to a UK port with migrant crew. Let’s assume it slows and activates its sophisticated seabed scanning equipment in UK waters for an unscheduled test. It is arguable that work in UK waters has commenced and therefore entry has occurred, even though that wasn’t the original intention and the vessel continues on its course through UK waters.

A fishing vessel is on its way back from operations outside of UK waters with migrant crew. Sonar detects a giant school of fish and the trawl nets are deployed as the opportunity is too good to pass up. The vessel’s operations now arguably involve working in UK waters, albeit the intention has changed. Is it likely that a skipper will even be aware that entry has occurred at that point and of the consequences which follow?

Journeys and operations around the UK’s rugged coastline might encroach in and out of UK waters over the course of a voyage. Perhaps weather or mechanical issues have forced a vessel closer to land. Analysing the position under section 43 could be very complex, particularly if the authorities are seeking to prosecute or impose a fine as a result of a claimed breach.

A crew member might consider that they were in the UK lawfully by virtue of section 8 but in fact, because of a short period working in UK waters, they had entered at that point and were now in the UK illegally. The changes give rise to a risk of inadvertent illegality which will be beyond the knowledge of the layperson.

There are also, to my mind, some confusing aspects of the new law. An offshore worker is defined as someone who commences work in UK waters, without first “entering the UK”. The only scrap of published policy is currently within the sponsor guidance, reminding sponsors of crew that they must adhere to the notification requirements.

The guidance and the law appear to suggest that if a crew member has entered via land before working in UK waters, they cannot be considered an offshore worker.

This seems to frustrate one of the intentions of the change, which is to prevent migrant crew on transit visas from operating in UK waters. If the vessel is joined by crew on transit visas and proceeds to then work in UK waters, the crew have arguably entered the UK first, by air and land and therefore cannot be described as offshore workers. This is what is inferred by the guidance.

This tension may be resolved if “leaving” the UK means to embark and the vessel then re-enters once work is commenced in UK waters. The most sensible interpretation is that embarkation is equivalent to leaving the UK.

However section 43 also contains a distinct definition of what it means to leave the UK, and states that someone working in UK waters is not deemed to have left the UK if they leave UK waters temporarily. That suggests that in other cases, leaving the UK in a maritime sense is leaving UK waters.

It is all quite confusing.

Published policy guidance may serve to illuminate some of these issues. However, as perhaps an indication of just how much the Home Office have on their plate at the moment, the official policy guidance for seafarers has not been updated to take account of NABA, now over 6 months since section 43 came into force.

The consequences of the change in law are far reaching. Any vessel with migrant crew which works to any degree inside territorial waters will be taking a grave risk if there is no appropriate immigration permission allowing work in the UK for those crew.

There are, of course, inevitable accommodations. The first is contained within the immigration rules for visitors and the list of permitted activities relating to cabotage:

PA 9.4. A Seafarer working on a vessel on a genuine international route between a port in the UK and a port outside the UK may:

(a) deliver or collect goods or passengers from a port outside the UK to bring to the UK port; and   

(b) call at up to a further 10 UK ports within a 60-day time period to deliver or collect goods or passengers before travelling to a port outside the UK.

This continues the uneasy position for visitors who are permitted to work to some degree, despite skirting some quite onerous provisions on illegal work and within a visa category that generally prohibits work. Visa nationals will however still require entry clearance before entering UK waters and I don’t think the ILO 108 convention will apply.

The second exception is buried within regulations that are designed to commence the requirement to notify the Home Office when offshore workers enter and exit UK waters: The Immigration (Offshore Worker Notification and Exemption from Control (Amendment)) Regulations 2023. These amend the Immigration (Exemption from Control) Order 1972 to include:

any person working on a foreign fishing boat authorised to fish in accordance with a sea fishing licence granted under section 17 of the Fisheries Act 2020 where that work is being undertaken pursuant to an international agreement or arrangement to which the United Kingdom is a party

This essentially brings crew under these provisions back within section 8, though a different subparagraph which allows the Home Secretary to, by order, “exempt any person or class of persons, either unconditionally or subject to such conditions as may be imposed by or under the order, from all or any of the provisions of this Act relating to those who are not British citizens.”

With a hard-pressed UK fishing industry, struggling to crew vessels, the exemption for foreign fishing boats to work in UK waters without similar immigration restrictions is likely to be a point of contention.

Conclusion

So what is the upshot from all this? The change in law is inevitably going to result in courts grappling with some of the altered definitions. The provisions give rise to various questions on interpretation. The concept of entry, pre-NABA, has already been a subject of various court decisions, see for example Bani v The Crown [2021] EWCA Crim 1958.

Employers of migrant crew that will serve on vessels that operate to any extent within UK waters need to consider some form of immigration permission which permits work for their crew. The skilled worker regime, which covers various maritime roles, presents one option. Although the English language requirement remains a barrier for many migrant crew.

There may be other esoteric options, such as under the Global Business Mobility route, though these are likely to be very fact specific. The one thing that operators cannot do is to ignore the provisions. They give rise to quite serious consequences for breaches.

Consider a vessel with six crew members, all of whom require a visa but do not have it. Under the proposed increased illegal worker penalties, the starting point will be a fine for their employer of over a quarter of a million pounds for even a moment’s work inside UK waters.

The position is exacerbated when you consider that, in contrast to employment on land, it only takes an error in navigation to breach the law and risk such serious civil and criminal consequences. To my mind the provisions also give rise to significant legal risks for crew members who may be completely oblivious to the position they are in.

I suspect we will see section 43 considered in the courts before too long.

For anyone who is interested in this area, Seafish has published a series of guides to the skilled worker system specifically aimed at fishing businesses and these can be found here.