What is in the Border Security, Asylum and Immigration Bill?

The Border Security, Asylum and Immigration Bill has landed, along with a written statement from the Home Secretary. The Bill weighs in at 57 clauses (“sections” once it is an Act), two schedules and 74 pages. Let’s take a look. You can also read the Explanatory Notes for yourself if you are really into this sort of thing.

Part 1: Border security

Border Security Commander

The first 12 clauses of the Bill put the Border Security Commander on a statutory footing. One must be appointed by the Home Secretary, must prepare annual reports and a board must be appointed to “assist the Commander in the exercise of the Commander’s functions”.

None of this is necessary or substantially changes the status quo because it was already possible to create the job and appoint a person to it, as indeed has already happened. These clauses are legislative verbiage, basically.

Articles and information for use in immigration crime

Clauses 13 to 36 create some new criminal offences — because we don’t already have enough of those already, apparently — grant new powers to immigration officials and enable more information-sharing within government.

The first new offences are supplying or handling “articles for use in immigration crime”. I don’t think they mean an article from Free Movement. At least, I hope not. The maximum sentence is, astonishingly, 14 years. An “article” is for this purpose “any thing or substance” other than a list of excluded things or substances of a humanitarian nature:

• food or drink
• anything designed for use in connection with the preparation, supply, consumption or storage of food or drink
• a medicinal product or medical equipment
• clothing
• bedding
• a tent or other form of temporary shelter
• anything designed solely or principally to preserve the life of a person in distress at sea, or
• anything designed solely or principally to enable a person in distress at sea to signal for help.

The number of things not on that excluded list is very considerable. For example, small boats and rubber dinghies aren’t on the excluded list. Nor are mobile phones. So, handing a mobile phone or a battery pack to an asylum seeker in Calais could potentially be punishable by a theoretical 14 years’ imprisonment. BUT there are some further requirements to the offence.

For both the supply and handling offences, the person concerned has to know or suspect the item will be used by any person in connection with an offence under sections 24 or 25 of the Immigration Act 1971. Even then, though, there is also a defence of having a reasonable excuse for providing an article. The reasonable excuse is not limited to but it does include carrying out a rescue or acting on behalf of an organisation which aims to assist asylum seekers and does not charge for its services.

Staff of charities assisting asylum seekers for humanitarian purposes would therefore not commit the offence. But a private individual going to try and help out independently might well do. And would probably also have no awareness of the offence. This could lead to some very harsh prosecutions and convictions.

There is a separate offence of collecting information for use in immigration crime. It’s quite hard to imagine what scenario this applies to. It’s all about collecting or making a record of “information of a kind likely to be useful to a person organising or preparing for a relevant journey or part of such a journey”. Maybe to do with observations of the French police and their patrols, or something like that.  

The offences can be committed by a person of any nationality anywhere in the world. Which seems rather broad. As well as pretty optimistic about the chances of detention and prosecution.

Endangering another during a sea crossing

Where a person commits the existing offence of unauthorised entry or arrival, they travelled by water from France, Belgium or the Netherlands and they “at any time during the relevant period, … did an act that caused, or created a risk of, the death of, or serious personal injury to, another person” then that would be a further additional criminal offence attracting a potential maximum sentence of six years. That’s one year longer than the prerequisite offence of which they have to have been guilty to commit this new offence. Which seems a bit pointless.

New powers

Clauses 20 to 26 confer new related powers on immigration officials to search for, seize and retain “articles”. I wonder whether the new offences are really about these new powers rather than prosecutions and convictions. Sounds like this would be used for seizing mobile phones, basically, as clause 23 confers a power to access, copy and use information on “articles”.

The new powers can be exercised by non-immigration officials as well, as designated in regulations, and reasonable force may be used.

Information sharing

HMRC is empowered (on a discretionary not mandatory basis) to share customs information with rather a wide range of people: ministers, immigration officers, designated officials, authorised persons, the government of a country or territory outside the UK and others.

A new power to take biometric information by evacuees is included at clause 34 which can be exercised by anyone authorised by the Home Secretary. This is presumably intended to get around some of the practical problems that have arisen with the Afghan evacuation and perhaps (optimistically) with refugee family reunion cases as well.

Part 2: Asylum and immigration

The whole of the Safety of Rwanda (Asylum and Immigration) Act 2024 is repealed.

Parts of the Illegal Migration Act 2023 are also repealed: the parts creating and implementing the duty to remove asylum seekers to other countries, enabling the Home Office to accommodate separated children (instead of the local authority), the power to “make provision about refusal to consent to scientific methods” for children whose age is being assessed (ugh) and the bits on interim remedies and interim measures of the European Court of Human Rights.

Other sections are retained, however, including the expanded detention powers, modifications to the modern slavery regime, the section that (absurdly) made all First-tier judges into judges of the Upper Tribunal, the section adding extra countries to the white list of inadmissible asylum and human right claims (section 59 IMA), the cap on entry under safe and legal routes and the section providing that concealing information is to be regarded as damaging to an asylum seeker’s credibility.

The regime for appointing the Immigration Services Commissioner is adjusted slightly so that terms can be less than five years, a deputy need not be appointed and instead a member of staff may be made interim commissioner. With John Tuckett, the existing commissioner, apparently being favourite to move to Chief Inspector of Borders and Immigration, it may not be long before these changes become relevant. As long as Tuckett’s fondness for very remote working doesn’t stymie his chances, anyway.

There’s some additional powers to detain those potentially facing deportation at clause 41 and some additional provisions on taking biometric information (i.e. fingerprints and photos) at clause 42.

Part 3: Prevention of serious crime

None of this part looks like it is directly relevant to immigration matters. It’s not clear that it really falls within the short title of the Bill.

Another new offence is created at clause 43: possession of an “article” for use in serious crime:

A person commits an offence if the person possesses a relevant article in circumstances which give rise to a reasonable suspicion that the relevant article will be used in connection with any serious offence.

That appears very broad. Particularly as the article simply being at the same premises as the person at the same time — or even just being on the premises of which the person was the occupier or which was habitually used by the person — is enough to constitute possession.

However, “relevant article” is given a relatively narrow meaning as a 3D printer firearms template; an encapsulator (for making capsules), a tablet press or a vehicle concealment (for hiding things or people). Also, serious crime has a specific statutory definition and is limited to things like fraud, money laundering, terrorism, and drug and people trafficking.

It is a defence to show the person “not intend or suspect that the relevant article would be used in connection with any serious offence.”

There are some consequential amendments to earlier legislation and some new powers to impose forms of electronic monitoring under serious crime prevention orders under the Serious Crime Act 2007.

Part 4: Other stuff

It recently emerged that the Home Office has been illegally charging some fees for many years because there was no statutory power to do so. Clause 51 retrospectively addresses that monumental balls-up.

The rest is financial provision, consequential provision, regulation making powers, extent and commencement.

Will it work?

Depends what it is intended to do.

If it is intended to stop or even reduce small boat crossings, no it won’t work. Prosecuting people smugglers who never set foot on British soil is impossible and more would spring up to meet demand anyway.

If its purpose is political, to show that the government is doing something, that won’t work either. Passing new laws makes it sound like you’re doing something but of itself has no real world impact. It increases expectations while doing nothing to sate them.

It’s good to see the back of the worst bits of the last government’s immigration legislation. No doubt, realistically, any such repeal was always going to include some new measures as well. My main sensation once I reached the end of the Bill is relief that the new government isn’t doing anything terrible. Not yet, anyway.

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