Blog post by Dr Niovi Vavoula, Queen Mary, University of London, and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
Introduction
This blog post focuses on Chapter 7 of the New Plan for Immigration titled ‘Disrupting Criminal Networks Behind People Smuggling’. A close look at Question 33 of the related consultation questionnaire reveals six possible areas of reform and this contribution focuses on three main aspects; 1) the introduction of tougher criminal sentences for those attempting to ‘illegally enter’ the UK; 2) the increase in the penalty to a maximum of five years of imprisonment for Foreign Nationals Offenders who return to the UK in breach of a deportation order; and 3) the setting up of an Electronic Travel Authorisation (ETA) Scheme for travellers to the UK who are not subject to visa requirements.
1. Introducing tougher criminal offences for those attempting to illegally enter the UK
Over the past few decades, legislative activity in the field of migration and asylum has resulted in overusing criminal law to regulate immigration to the extent that almost any breach of immigration rules is a crime (see here as well). The key provision in that respect is s 24(1) of the Immigration Act 1971, which provides that a non-British national who knowingly enters the UK in breach of a deportation order or without leave is guilty of a (summary) criminal offence, punishable by a fine or six months of imprisonment or both. Criminalisation of irregular entry is incompatible with the Global Compact on Safe, Orderly and Regular Migration (Marrakesh Compact), under which states ‘commit to ensure that migrants shall not become liable to criminal prosecution for the fact of having been the object of smuggling’ (para 25). It is also incompatible with Article 5 of the UN Smuggling Protocol and Article 31(1) Refugee Convention. Nevertheless, the New Plan for Migration intends to continue this well-established practice of overcriminalisation by expanding the criminal offence of ‘illegal entry’ to those ‘seeking to enter the UK illegally’, thus focusing on criminalising attempts, and second, by significantly increasing the penalty framework, so that convicted individuals will be penalised with imprisonment of 2-5 years.
The aim of this reform is to deter individuals from attempting to seek safe haven in the UK, thus preventing arrivals, without providing legal routes for individuals to apply for international protection (at sea or after reaching shore). On the one hand, it is unclear how the criminalisation of attempting to seek illegal entry will operate from the perspective of jurisdiction and the point at which an individual may be found to have violated the law (before travelling, or in international waters). On the other hand, the proposed increase in the penalty framework for the offence of illegal entry raises four significant proportionality concerns:
Firstly, and most simply, because immigration offences are victimless and minor offences; secondly, from a comparative perspective (for an overview of penalties worldwide see here), because such an increase will situate the UK amongst a distinct minority of countries worldwide that provide for the most severe penalties, such as Bangladesh, Cayman Islands, Chile and Ethiopia. Amongst European countries, the UK will be placed next to Bulgaria, the sole European country currently prescribing such severe penalties to irregular migrants.
Secondly, without endorsing the criminalisation of irregular entry as a practice, at least for now, UK legislation is placed among a minority of countries worldwide that assign a criminal penalty (rather than merely deportation) to violations of immigration. Yet in many of those countries the penalty framework is more moderate and includes a non-custodial sentence. For example, similarly to the UK, under US federal law (8 U.S.C. § 1325), anyone who enters the United States illegally is committing a misdemeanour and can be sentenced to a fine or to six months in prison. This is in line with the current penalty framework in the UK. But the minimum penalty foreseen in the New Plan will be 2 years of imprisonment, which is clearly disproportionate in comparison with other countries and does not reflect the objective severity of the offence.
Thirdly, the possible deterring effect of this reform: individuals who are in need of protection and are willing to undertake potentially highly perilous journeys and risk their lives will also undoubtedly risk their personal liberty – thus confounding this argument.
Finally, the enforcement of the higher penalty framework is highly doubtful as prosecution is more expensive and time-consuming in comparison to the administrative process of deportation. Law enforcement officials may include criminalisation amongst their options, but removal is the preferred way forward. The rationale being that en masse convictions of irregular migrants could lead to overcrowding of prisons, further expenditure and, overall, do not serve the interests of justice. The rhetoric that the UK Government is doing something about immigration law breaking is not a sufficient rationale for further increasing the criminal penalty.
2. Increasing the penalty to a maximum of 5 years imprisonment for Foreign National Offenders who return to the UK in breach of a deportation order
Another possible reform concerns the increase of the penalty framework from six months of imprisonment to five years for Foreign National Offenders (FNOs) who, having been deported, return to the UK. According to the New Plan, FNOs ‘cause a great deal of harm to their victims as well as the safety of our communities’, thus necessitating a ‘relentless pursuit of justice’.
This increase in the penalty framework is also disproportionate in comparison to the severity of the offence of re-entry; it disregards that a gradation of penalties must be foreseen in relation to different immigration offences, as an individual who has entered the UK irregularly for the first time could be punished by imprisonment of up to five years, as will be the case with a repeated offender if this reform goes forward. A comparative overview of similar offences in other countries provides further insights into the treatment of FNOs. For example, in France, where such an offence exists, the penalty framework is a custodial sentence of max 3 years. Meanwhile, Italy (Art. 14, para. 5 quater) prescribes a term of imprisonment of 1-4 years and expulsion. Outside the European context, in the US, 8 U.S. Code § 1326 foresees a penalty framework of maximum two years of imprisonment or a fine. The lack of a minimum sentence is also noteworthy, as well as a distinction between different categories of FNOs, who may be convicted for various criminal offences, outside immigration-related ones.
3. The Setting up of a UK ETA System
A third reform discussed in this contribution concerns the setting up of a UK ETA scheme for visa free travellers. This will entail travellers wishing to enter the UK having to obtain an authorisation prior to their travel by providing a series of personal data and undergoing a risk assessment on the basis of algorithms and extensive cross-checking of their data against UK immigration and law enforcement databases.
As the Plan indicates, this idea is not a novelty and takes cue from similar initiatives that are already deployed in the United States (US) –the ESTA-, Canada, Australia and New Zealand. A comparable system, the European Travel Information and Authorisation System (ETIAS), is already under development within the European Union and is set to commence its operation in 2022.
The ETA envisaged in the New Plan for Immigration, which will apply to EU nationals as well as other foreigners, will be a pre-emptive tool of extensive risk assessment of similar, while less onerous, function as a visa requirement, but with more emphasis on automated decision-making. The setting up of this scheme will have tremendous implications for the protection of a series of human rights, including the right to respect for private life, enshrined in Article 8 of the European Convention on Human Rights and Article 8 of the Human Rights Act 1998, and the adherence of the data protection principles as enshrined in the Data Protection Act 2018. Consequently, a series of considerations must be taken into account prior to setting up the ETA.
The purposes for which the scheme will be used must be specified and clear; in that respect, it cannot go unnoticed that the introduction of the ETA scheme seems somewhat disconnected from the overarching theme to the New Plan’s Chapter 7 of disrupting criminal networks. In other words, the Plan fails to identify how the ETA scheme will deliver on its promise to disrupt smuggling networks, as it will target countries whose nationals are not subject to visa requirements who may visit the UK for tourism or business purposes typically for a period up to 90 days.
Furthermore, the setting up of an ETA scheme must be in line with the principles of necessity and proportionality. The categories of personal data that travellers must provide upon application must be kept to what is strictly necessary and relevant, in accordance with the principle of data minimisation. The authorities who will have access to ETA data, including authorities outside the UK to which the data may be transferred, should be considered; for example, a question in this respect is whether UK intelligence services should be excluded from accessing such data on the basis of UK data protection obligations. Importantly, the way in which the risk assessment will take place is also highly important; any cross-checking against data already in databases or watchlists must take into account the data already stored, must be of adequate data quality and not out of date, otherwise any cross-checking is destined to produce false matches and potentially individuals will be refused travel authorisation.
Importantly, ETA entails the use of algorithms to profile applications against pre-determined risk indicators related to security, illegal immigration or public health considerations. As with all algorithmic tools, since they are trained on past decision-making, they replicate all of the implicit and inherent biases of those earlier decisions. In August 2020, the UK Home Secretary chose to withdraw an algorithm used in visa applications when challenged by an NGO on the basis, inter alia, of racial discrimination, rather than to try to justify its use before the courts. Therefore, the risk of direct or even indirect discrimination of certain categories of foreigners on the basis of biased risk indicators cannot be excluded and must be carefully considered. In addition, the introduction of an ETA system must enable refused applicants to exercise effective remedies and, in order to do so, the any refusal of an ETA application must explicitly state the reasons.
Finally, from a cost-effectiveness perspective, another issue that must be taken into account is that digitalisation is a costly process and the UK is still recovering for an exorbitant expenditure in relation to the failed e-borders programme, which has been subject to severe criticism that it has failed to digitally transform the UK borders and does not provide value for money.
Conclusion
The above paragraphs have provided a first-glance analysis of reforms proposed by the UK Home Office to address the phenomenon of human smuggling through overcriminalisation and recourse to digital technologies. It is evident that a highly securitised approach is promoted without due regard to human rights of foreigners who may be find it increasingly difficult to reach UK territory. Prevention of movement, deflection of responsibility and disregard of a humane approach are at the heart of this strategy, which is bound to have tremendous implications for foreigners, particularly those in need.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.