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7 July 2021

Is Priti Patel making it illegal in the UK to rescue asylum seekers?

The government’s new Nationality and Borders Bill marks yet another departure from the UK’s rich history of providing a haven for persecuted people.

By Anoosh Chakelian

The Nationality and Borders Bill, which legislates for changes to the UK’s asylum and immigration system, has been published. One section in particular is causing concern online.

The King’s College London economist Jonathan Portes tweeted a section that suggests helping an asylum seeker to enter the UK will no longer need to be “for gain” to potentially be a criminal offence. He dubbed this the “Nicholas Winton clause” – after the Briton who rescued Jewish children from Europe on the eve of the Second World War by providing safe passage to the UK (on what is known as the Kindertransport).

The implication is that sea rescue services and charities could be just as likely as people smugglers to be prosecuted for helping asylum seekers onto UK soil. Indeed, the volunteer lifeboat charity RNLI has already had to justify its work earlier this week after former Ukip and Brexit Party leader Nigel Farage accused it of being a “taxi service for illegal immigration”.

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The RNLI said:

“Our lifeboats operate under international maritime law, which states we are permitted and indeed obligated to enter the waters of other territories for search and rescue purposes… Our lifesavers are compelled to go to those in need without judgement of how they came to be in the water.”

According to the new bill, there will be two main changes in terms of assisting immigrants and asylum seekers into the country.

The first change to the existing Immigration Act is to the sentence for assisting unlawful immigration, which will be changed from 14 years maximum to “imprisonment for life”. The second change to the existing Immigration Act is to remove the words “and for gain” from the section relating to the offence committed by people who help asylum seekers into the UK.

So

A person commits an offence if—

(a) he knowingly and for gain facilitates the arrival [F2 or attempted arrival] in [F3, or the entry [F4 or attempted entry] into, ] the United Kingdom of an individual, and

(b) he knows or has reasonable cause to believe that the individual is an asylum-seeker.

Becomes

A person commits an offence if—

(a) he knowingly and for gain facilitates the arrival [F2 or attempted arrival] in [F3, or the entry [F4 or attempted entry] into, ] the United Kingdom of an individual, and

(b) he knows or has reasonable cause to believe that the individual is an asylum-seeker.

By law, the above does not apply to “anything done by a person acting on behalf of an organisation which a) aims to assist asylum seekers, and b) does not charge for its services”, which means that general search and rescue services that don’t have an explicit mandate to assist asylum seekers could face prosecution.

Although international maritime law states that ships have a duty to attempt to rescue persons in danger at sea, and that this cannot legally be prohibited by a state, there have been many arrests and even prosecutions over the past five years of captains and crews trying to rescue migrants and refugees off Europe’s shores, on the grounds that they are people smuggling.

Indeed, if this new bill were to pass, it would bring UK law in line with that of the European Union, whose “Facilitation Directive” is drafted in a way that omits a requirement for someone to be motivated by material gain in order for an act to count as smuggling.

While it is ironic that this particular change would only make Brexiteer Home Secretary Priti Patel as “tough” as her European Union counterparts, it marks yet another departure from the United Kingdom’s rich history of providing a haven for persecuted people.

As Tim Naor Hilton of Refugee Action puts it: “The UK used to be a world leader on refugee resettlement, resettling the third largest number of refugees after the US and Canada. Now we are barely in the footnotes.”