The Nationality and Borders Bill further criminalises people coming to the UK to seek asylum. It does so by switching the emphasis from 'entering' the UK to 'arriving' in the UK. The difference is significant. Together with a combination of other powers, it means that people can be stopped from crossing the English Channel in small boats and turned away for criminal behaviour. If by luck they land on the English coastline, they can be prosecuted. But many such people will be asylum seekers, with a right to come to the UK and seek asylum. The proposal ignores the provision of the Refugee Convention (Article 31) that prohibits penalties being imposed on Refugees who enter or are present in a country without authorisation. The result is incompatible with UK international commitments.
The Crimes of Arrival
The Nationality and Bill makes several important changes to immigration-related criminal offences. First, it introduces a new provision so that a person who requires entry clearance (such as a visa) under the Immigration Rules and who knowingly arrives in the United Kingdom without a valid entry clearance will commit an offence (clause 37 of the Bill amending section 24 of the Immigration Act 1971). This expands the power to prosecute a person. Currently, immigration offences focus ion 'entry' to the UK. But 'entry' has a special meaning and presenting yourself on arrival or subsequent temporary admission to the UK does not count as 'entry'. Further, in reshaping this offence, the Bill makes no provision for a defence under Article 31 of the Refugee Convention.
In point of fact, there is no UK entry clearance or visa for someone to come to the UK to claim asylum. An asylum seeker (who is in fact a Refugee) will commit an offence in arriving in the UK to claim asylum under the proposed offence. They will do so whether they arrive by crossing the Channel or by arriving using a visa issued for another purpose.
Second, the Nationality and Borders Bill amends existing law to add a new dimension to assisting unlawful immigration (clause 37 of the Bill amending section 25 of the Immigration Act 1971), so that it would be an offence to do an act:
- to facilitate the commission of a breach or attempted breachof 'immigration law', the latter being defined to include regulation of entitlement to arrive in a state, by an individual who is not an EU citizen
- who knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of such immigration law by the individual, and
- who knows or has reasonable cause for believing that the individual is not an EU citizen
Third, the Nationality and Borders Bill alters the maximum penalty for assisting unlawful immigration: it is raised from 14 years imprisonment to life imprisonment (clause 38 of the Bill amending section 25 of the Immigration Act 1971).
Fourth, the Nationality and Borders Bill alters the offence of helping asylum seekers enter the United Kingdom so that it captures not just those who do so for gain but also everyone else (clause 38 of the Bill amending section 25A of the Immigration Act 1971). Under the amended provision, a person commits an offence if:
- he knowingly facilitates the arrival or attempted arrival in or the entry or attempted entry into, the United Kingdom of an individual, and
- he knows or has reasonable cause to believe that the individual is an asylum-seeker
While this provision does not apply to anything done by a person acting on behalf of an organisation that aims to assist asylum-seekers and does not charge for its services, that does not help persons steering vessels. By these alterations, a person seeking asylum who steers an insecure vessel crossing the Channel may be prosecuted for helping other asylum seekers in the same boat (literally and metaphorically).
By criminalising arrival in the UK, criminalising helping those who arrive in the UK, introducing life imprisonment for those that help them, and criminalising those who help asylum seekers other than for gain, the ability of people to seek asylum in the UK is frustrated.
The new criminal offences dovetail with the new maritime enforcement powers contemplated; the latter may only be used for the purpose of purpose of preventing, detecting, investigating or prosecuting a relevant immigration offence (i.e. an offence found in ss 24, 25 and 25A of the Immigration Act 1971, see above). Thus, the new offences work twice over: first, to criminalise behaviour; second, to enable enforcement powers. As regards the latter, see my post In the Footsteps of Sir Francis Drake: Home Office Plans for the Seas in the Nationality and Borders Bill.
In addition, the new offences have to be seen alongside the provision that prevents people seeking to claim asylum from being able to do so when stopped in UK territorial waters, see my post The Prohibition on Making Asylum Claims in UK Territorial Waters in the Nationality and Borders Bill.
Taken together, (i) the criminalisation of arrival, (ii) the new maritime enforcement powers, and (iii) the prohibition on claiming asylum in UK waters, frustrate UK obligations in international law, see my post International Legal Obligations that Cut Across UK Maritime Enforcement Provisions in the Nationality and Borders Bill. What then of the Refugee Convention defence?
Article 31 of the Refugee Convention
Article 31(1) of the Refugee Convention binds the UK on the plane of international law. It provides that:
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
In the UK, Article 31 has proved its usefulness in resisting the conviction of asylum seekers in criminal proceedings, see R v Uxbridge Magistrates' Court, ex parte Adimi  QB 667. Thereafter, by reference to in Article 31 of the Refugee Convention, a defence of limited utility, was introduced into UK law by section 31 of the Immigration and Asylum Act 1999. However, direct reliance on Article 31 continues to be useful in resisting prosecution in relation to matters not obviously covered by section 31 of that Act, see R v Asfaw (UNHCR intervening)  1 AC 1061.
Unsurprisingly, the Nationality and Borders Bill does not provide defences in UK law based in Article 31 of the Refugee Convention to the crimes of arrival introduced by the Bill. Indeed, the Bill goes further and seeks to restrict the applicability of Article 31, see clause 34. It is wrong that no provision is made for a defence based on Article 31. There is a risk of a breach of international law in the result. And most importantly, people claiming asylum are criminalised. The proposals should be dropped from the Bill.