It is argued that, despite the recent amendments, the new Nationality and Borders Bill still raises concerns for seafarers who comply with their legal duty to save life at sea.
Introduction
Since its introduction to the House of Commons on 6 July 2021, the new Nationality and Borders Bill has attracted a lot of attention and has received fierce criticism for the changes it brings to the UK’s immigration and asylum system. What has not been widely known, however, is that the new bill will also change the provisions of the Immigration Act 1971 in relation to people smuggling offences in a way that can potentially criminalise seafarers who save the life of someone in distress at sea. With an amendment which aims to protect seafarers from any unfair prosecution being tabled by the UK government, not least thanks to the efforts of, and lobbying from, industry stakeholders, this blogpost attempts to explain why the new Nationality and Borders Bill matters for seafarers, what changes are proposed to the existing legislation, and what risks remain for seafarers.
Why does the new Nationality & Borders Bill matter for seafarers?
In the past few years, the world has witnessed an unprecedented humanitarian crisis. Millions of people are forced to leave their home countries in order to escape war, famine and poverty and many of them have no other option but to risk their lives, and cross some of the world’s busiest shipping lanes in small dinghies in their search for safety. It is within this context that, on various occasions, seafarers had to assist with rescues at sea. What is important to note, however, is that seafarers do not conduct these rescue operations only out of a moral obligation. There is a legal obligation to do so. Under Article 98 of the United Nations Convention of the Law of the Sea, 1982, the master and crew of a commercial ship have a duty to rescue people in distress at sea, and to bring them in a place of safety. Similar provisions are found in Chapter V of the International Convention for the Safety of Life at Sea, 1974, as well as in the International Convention for Salvage, 1989, Article 10 of which provides that ‘every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea’ and that ‘State parties shall adopt the measures to enforce the duty set out in paragraph 1’. In fact, the UK has adopted relevant provisions, establishing that a master shall be liable of a criminal offence if he/she fails to comply with his/her duty to render assistance to persons in danger at sea and that the maximum available sentence would be two-year imprisonment or a fine, or both.[1] In effect, this means that any new provision that could make seafarers criminally liable for saving people in danger at sea would criminalise seafarers for doing what they are required to do by law!
Given that the English Channel is tuning into a popular crossing point for those who search for a better future,[2] and since its inherent dangers, the issues raised by the upcoming changes of the current legislation are not just of theoretical interest.
What did the Immigration Act 1971 provide?
Section 25A, paragraph 1 of the Immigration Act 1971, which represents the current law, provides that a person, who knowingly and for gain facilitates the arrival or attempted arrival in, or the entry or attempted entry into, the UK of an individual, and he/she knows or has reasonable cause to believe that the individual is an asylum-seeker,[3] commits a criminal offence. This could lead to a maximum sentence of 14-year imprisonment, to a fine or to both.[4] However, with the greater focus on the requirement for gain, seafarers assisting with rescues at sea according to their international maritime law obligations are well protected from the risk of being unfairly prosecuted. Unfortunately, it is argued, the latter will not be guaranteed if/when the proposed Bill is passed.
What is the Nationality & Borders Bill’s new provision for the offence of assisting asylum-seekers to enter the UK?
The Nationality & Borders Bill,[5] as introduced on 6 July 2021, proposed, pursuant to clause 38, two significant amendments in relation to the offence of facilitating the arrival in, or entry into, the UK of asylum-seekers under section 25A of the Immigration Act 1971. The first relates to the maximum potential sentence, an increase of which has been proposed from a 14-year prison sentence to life imprisonment. The second, and arguably the most important one, relates to the removal of the current requirement ‘for gain’ in order to commit such offence. This implied that a blanket criminal offence would be created, with no defences available, which could expose those seafarers who comply with their international maritime law obligation to save life at sea into criminal liability.
As a result, it was not surprising that the proposed amendments were not received well by social partners and organisations representing seafarers and the shipping industry, in general. In fact, Nautilus International and the UK Chamber of Shipping issued a joint letter to the UK government over the new Nationality and Borders Bill, in which they raised their concerns about the potential implications of the proposed bill in the long lasting problem of criminalisation of seafarers and requested the maritime minister and the shadow secretaries of transport and maritime to raise those concerns with the Home Secretary to ensure that sufficient assurances will be given that seafarers would not be liable for prosecution for complying with international maritime law.[6] In response to this letter, the Home Office Minister at the time Chris Phillip clarified that the new Nationality and Borders Bill would not target seafarers.[7] Although this response was reassuring, it was not found to be satisfactory, as it left the matter to be dealt with through policy guidance.[8] Thus, Nautilus International and the UK Chamber of Shipping issued a second letter, urging for those reassurances, namely that seafarers of commercial ships would not be criminalised for rescuing distressed persons at sea and bringing them ashore in the United Kingdom, to be codified in legislation.[9]
After strong lobbying from Nautilus International and the UK Chamber of Shipping, in January 2022, the UK government finally confirmed that it has tabled an amendment to the new Nationality and Borders Bill which ensures that seafarers who are required by law to rescue people at sea will be adequately protected from criminal prosecution.[10] Indeed, the latest reprint of the new bill,[11] in clause 40, paragraph 4, introduces a defence for the offence of assisting asylum seekers to arrive in, or to enter into, the UK under section 25A of the Immigration Act 1971 that could be used by seafarers in those circumstances.[12] This defence is to be included as section 25BA in the Immigration Act 1971. Briefly, it provides that a person charged with this offence would not be liable if it is established that:
‘(a) the assisted individual had been in danger or distress at sea, and
(b) the act of facilitation was an act of providing assistance to the individual at any time between –
- the time when the assisted individual was first in danger or distress at sea, and
- the time when the assisted individual was delivered to a place of safety on land.’[13]
From an evidentiary perspective, the defence will succeed, if the person charged with the offence adduces sufficient evidence of the relevant facts, and the contrary is not proved beyond reasonable doubt.[14] Finally, it should be mentioned that the defence will not be available in two circumstances, where the UK was not the nearest place of safety on land, and there was no good reason to deliver the assisted individual in the UK instead of to a nearer place of safety on land, and where the person charged with the offence was on the same ship as the assisted individual at the time when the individual was first in danger or distress at sea.[15] Thus, against this backdrop, a question remains as to whether the amendments proposed to the new Nationality and Borders Bill by the UK government award seafarers who rescue those in distress at sea with adequate protection.
What is the risk for seafarers?
Most certainly, the fact that the new Nationality and Borders Bill has been amended to include a defence for the offence of facilitating the arrival in, or entry into, the UK of asylum-seekers is a big success for seafarers and the shipping industry. However, some risks remain. For example, there is a question as to what would be considered as ‘sufficient’ evidence for the purposes of this defence. Furthermore, one should not overlook or underestimate the difficulties faced by seafarers when they are required to provide evidence in the context of criminal investigations in a foreign port.[16] Finally, it is unclear what the position of those seafarers involved in criminal investigations for rescuing people at sea would be. [17]
Under the shadow of these risks, seafarers may still find themselves in front of a dilemma as to whether to rescue those who are in danger at sea, and risk finding themselves caught in the middle of a criminal investigation process, or whether to disregard their responsibilities under international maritime law to save life at sea, with whatever repercussions this might have in the existing humanitarian crisis, and ‘save’ themselves from the risk of being unfairly treated. In order to avoid this, it is argued, further clarity and certainty is required. This can be achieved through policy guidance. Alternatively, the possibility of developing a code of practice to be followed by seafarers when attempting rescues at sea can be considered.
What happens next?
Having been passed by MPs in the House of Commons in December, the Bill is now being debated by the House of Lords and is due to go to committee stage on 27 January 2022, where a detailed line by line examination of the separate parts of the Bill will take place. During the committee stage, all suggested amendments will also have to be considered and votes on any amendments can take place before every clause of the Bill will be agreed to. At the end of the committee stage, the Bill will be reprinted with all the agreed amendments, and it will then move to report stage for further scrutiny.
Concluding remarks
It is beyond doubt that what Nautilus International and the UK Chamber of Shipping achieved was a big win for seafarers which highlighted how important is the role of industry stakeholders in forming public policy. However, there are still things that can be done to ensure that the ‘faith’ of seafarers, who comply with their legal obligations and save people at sea, will be more predictable if/when the new Nationality and Borders Bill is passed.
[1] Section 3, Part II, Schedule 11 of the Merchant Shipping Act 1995.
[2] It is estimated that, in 2021, more than 21,000 people crossed the English Channel, while the number of people crossing in 2020 was more than 40,000.
[3] Section 25A, paragraph 2 of the Immigration Act 1971 explains that, for the purposes of this section, ‘“asylum-seeker” means a person who intends to claim that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom’s obligations under (a) the Refugee Convention (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c 33) (interpretation)), or (b) the Human Rights Convention (within the meaning given by that section).
[4] Section 25A, paragraph 4, read in conjunction with Section 25, paragraph 5 of the Immigration Act 1971.
[5] Bill 141 2021-22.
[6] ‘Nautilus and UKCS question migrant Bill that could criminalise seafarers’ (20 July 2021) available at < https://www.nautilusint.org/en/news-insight/news/nautilus-and-ukcs-question-migrant-bill-that-could-criminalise-seafarers2/> accessed 12 January 2022.
[7] ‘Union urges Nationality and Borders Bill legislative clarity’ (12 August 2021) available at <https://www.nautilusint.org/en/news-insight/news/nationality-and-borders-bill-clarity/ > accessed 12 January 2022.
[8] ibid.
[9] ibid.
[10] ‘UK Chamber of Shipping and Nautilus welcome government amendment on Nationality and Borders Bill’ (6 January 2022) available at < https://ukchamberofshipping.com/latest/uk-chamber-shipping-and-nautilus-welcome-government-amendment-nationality-borders-bill/ > accessed 12 January 2022.
[11] HL Bill 82.
[12] It may be worth noting that this defence will also be available for the offence of assisting unlawful immigration under section 25 of the Immigration Act 1971.
[13] Clause 40, paragraph 4 of the Nationality and Borders Bill (HL Bill 82).
[14] ibid.
[15] ibid.
[16] Research has shown that the fear of criminalisation is one of the most important factors that drives seafarers away from working at sea. See, for example, Report for discussion at the Sectoral Meeting on the Recruitment and Retention of Seafarers and the Promotion of Opportunities for Women Seafarers (Geneva, 25 February–1 March 2019), International Labour Office, Sectoral Policies Department, Geneva, ILO, 2019.
[17] There is also a question as to what the position of the ship would be for as long as the investigations last.