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Home Office intends to grant immunity to Border Force during pushbacks

The British government has been condemned for its plans to protect Border Force officials in the event of deaths at sea during an illegal pushback.

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What is being proposed under the new law?

Under the proposed nationality and borders bill, it has been confirmed that border officials involved in pushing back migrants from the UK (which is currently illegal under international maritime law) will not face prosecution in the UK in the event of deaths at sea.

While the number of people crossing the English Channel and seeking asylum has increased significantly in 2021, the UK’s approach to date has been to protect people at sea and bring them to the UK.

However, the new bill aims to prevent individuals from entering the UK for the purposes of seeking asylum except via an existing settlement route.

Existing laws make it a criminal offence for officers to place people at sea in danger of drowning.

The section of the bill that is causing controversy is set out as follows:

“A relevant officer is not liable in any criminal or civil proceedings for anything done in the purported performance of functions under this part of this schedule if the court is satisfied that (a) the act was done in good faith, and (b) there were reasonable grounds for doing it.

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Why is this new proposal being condemned?

Several international agreements exist (to which the UK has agreed to be bound) stating that all people at sea have an obligation to assist a person in distress at sea.

Article 98 (Duty to Render Assistance) of the United Nations Convention on the Law of the Sea states:

“1. 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; …
  1. Every coastal State 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.”

It is not illegal to cross the English Channel if an individual intends to claim asylum in the UK, nor is it an offence to support a person in doing so.

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Nationality and Borders Bill

The proposed Nationality and Borders Bill has been condemned as violating international law. Legal experts have stated that the following enforcement powers have been included in the bill:

  • Power to seize and dispose of ships
  • Power to stop, board, divert, and detain foreign ships without reference to nationality

These may clearly be interpreted as giving officials the authority to push back individuals on an illegal basis. It is unclear how this would work in practice in relation to the shared waters between the UK and France.

However, France has already indicated it will refuse to assist the UK, with the French interior minister, Gérald Darmanin, stating that:

“Safeguarding human lives at sea takes priority over considerations of nationality, status and migratory policy.”

A Conservative MP and member of the Home Affairs select committee, Tim Loughton, supported the idea but did not believe it would reflect well on the UK government if migrants were to drown in the English Channel:

“Any boat coming up alongside at speed would capsize most of these boats anyway and then we’re looking at people getting into trouble in the water and drowning… and then we’ll get blamed for that. It sounds good pushing them back but it’s not going to work in practice.”

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