Nationality and Borders Act 2022

Section 45

SCHEDULE 7 Maritime enforcement

1 Part 3A of the Immigration Act 1971 (maritime enforcement) is amended as follows.

2 Before section 28M insert—

“28LA Enforcement powers in relation to ships: United Kingdom

(1) An immigration officer or an enforcement officer may exercise the powers set out in Part A1 of Schedule 4A (“Part A1 powers”) in relation to any of the following in United Kingdom waters, foreign waters or international waters—

(a) a United Kingdom ship;

(b) a ship without nationality;

(c) a foreign ship;

(d) a ship registered under the law of a relevant territory.

(2) But Part A1 powers may be exercised only—

(a) for the purpose of preventing, detecting, investigating or prosecuting a relevant offence, and

(b) in accordance with the rest of this section.

(3) The authority of the Secretary of State is required before an immigration officer or an enforcement officer may exercise Part A1 powers in relation to—

(a) a United Kingdom ship in foreign waters,

(b) a ship without nationality,

(c) a foreign ship, or

(d) a ship registered under the law of a relevant territory.”

3 In section 28M (enforcement powers in relation to ships: England and Wales)—

(a) in subsection (1), for the words from “An immigration officer” to “enforcement officer” substitute “An English and Welsh constable”, and

(b) in subsection (3)—

(i) omit “an immigration officer,”, and

(ii) omit “or an enforcement officer”.

4 In section 28N (enforcement powers in relation to ships: Scotland)—

(a) in subsection (1) for the words from “An immigration officer” to “enforcement officer” substitute “A Scottish constable”, and

(b) in subsection (3)—

(i) omit “an immigration officer,”, and

(ii) omit “or an enforcement officer”.

5 In section 28O (enforcement powers in relation to ships: Northern Ireland)—

(a) in subsection (1) for the words from “An immigration officer” to “enforcement officer” substitute “A Northern Ireland constable”, and

(b) in subsection (3)—

(i) omit “an immigration officer,”, and

(ii) omit “or an enforcement officer”.

6 In section 28P (hot pursuit of ships in United Kingdom waters)—

(a) in subsection (1), for the words from “An immigration officer” to “enforcement officer” substitute “An English and Welsh constable”,

(b) in subsection (3), for the words from “An immigration officer” to “enforcement officer” substitute “A Scottish constable”,

(c) in subsection (5), for the words from “An immigration officer” to “enforcement officer” substitute “A Northern Ireland constable”, and

(d) in subsection (10), omit “or an enforcement officer”.

7 After section 28P insert—

“28PA Power to seize and dispose of ships etc.

(1) This section applies if—

(a) an immigration officer has reasonable grounds to suspect that a ship has been used in the commission of a relevant offence, and

(b) the ship is in United Kingdom waters or otherwise in the United Kingdom.

(2) Subject to subsection (3), the immigration officer may seize the ship and any property relating to the operation or use of the ship.

(3) The authority of the Secretary of State is required before an immigration officer may seize anything under this section.

(4) If an immigration officer seizes a foreign ship or a ship registered under the law of a relevant territory, the Secretary of State must notify the home state or relevant territory in question that the ship has been seized.

(5) In subsection (4) “home state”, in relation to a foreign ship, means—

(a) the State in which the ship is registered, or

(b) the State whose flag the ship is otherwise entitled to fly.

(6) Where a ship without nationality, or property relating to the operation or use of a ship without nationality, is seized under this section—

(a) section 26 of the UK Borders Act 2007 (disposal of property) and any regulations made under that section do not apply in respect of that ship or other property, and

(b) subsections (7) to (12) apply instead.

(7) The Secretary of State may—

(a) return the ship or other property to the person whom the Secretary of State believes to be its owner, or

(b) after the relevant period—

(i) dispose of the ship or other property, or

(ii) determine that the ship or other property is to be retained to be used in the course of, or in connection with, a function under the Immigration Acts.

(8) On the making of a determination under subsection (7)(b)(ii), the ship or other property vests in the Secretary of State.

(9) The relevant period is the period of 31 days beginning with the date on which the ship or other property was seized.

(10) Before exercising a power under subsection (7)(b), the Secretary of State must make reasonable efforts to—

(a) ascertain the identity of the owner of the ship or other property, and

(b) subject to subsection (11), notify that person that the ship or other property has been seized.

(11) The Secretary of State is not required to notify a person under subsection (10)(b) if to do so may prejudice any criminal investigation or criminal proceedings.

(12) Disposal under this section may be in any manner the Secretary of State thinks fit, including—

(a) by sale;

(b) by dismantling;

(c) by destruction;

(d) by donation of the ship or other property to a charity or other not-for-profit body.”

8 In section 28Q (interpretation of Part 3A)—

(a) at the appropriate places insert—

• ““foreign waters” means the sea and other waters within the seaward limits of the territorial sea adjacent to any relevant territory or any State other than the United Kingdom;”,

• ““international waters” means waters beyond the territorial sea of the United Kingdom or of any other State or relevant territory;”,

• ““Part A1 powers” means the powers set out in Part A1 of Schedule 4A;”,

• ““relevant offence” means—

  (a)

  an offence under section 24(A1), (B1), (D1) or (E1), 24B, 25 or 25A,

  (b)

  an offence under section 25B to the extent that the section continues to apply by virtue of regulation 5(7) of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (S.I. 2020/1309),

  (c)

  an offence under section 21 of the Immigration, Asylum and Nationality Act 2006, or

  (d)

  an offence under section 1 of the Criminal Attempts Act 1981 or Article 3 of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 (S.I. 1983/1120 (N.I. 13)), or in Scotland at common law, of attempting to commit an offence mentioned in paragraph (a) to (c);”, and”,

• ““United Kingdom waters” means the sea and other waters within the seaward limits of the United Kingdom’s territorial sea;”, and

(b) for the definition of ship substitute—

• ““ship” includes—

  (a)

  every description of vessel (including a hovercraft), and

  (b)

  any other structure (whether with or without means of propulsion) constructed or used to carry persons, goods, plant or machinery by water;”.

9 Schedule 4A (enforcement powers in relation to ships) is amended as follows.

10 Before Part 1, insert—

“PART A1 United Kingdom

Introductory

A1 (1) This Part of this Schedule sets out the powers exercisable by immigration officers and enforcement officers (referred to in this Part of this Schedule as “relevant officers”) under section 28LA.

(2) In this Part of this Schedule—

• “items subject to legal privilege” means items in respect of which a claim to legal professional privilege (in Scotland, to confidentiality of communications) could be maintained in legal proceedings;

• “the ship” means the ship in relation to which the powers set out in this Part of this Schedule are exercised.

Power to stop, board, divert and detain

B1 (1) This paragraph applies if a relevant officer has reasonable grounds to suspect that—

(a) a relevant offence is being, or has been, committed on the ship, or

(b) the ship is otherwise being used in connection with the commission of a relevant offence.

(2) The relevant officer may—

(a) stop the ship;

(b) board the ship;

(c) require the ship to be taken to any place (on land or on water) in the United Kingdom or elsewhere and detained there;

(d) require the ship to leave United Kingdom waters.

(3) The relevant officer may require the master of the ship or any member of its crew to take such action as is necessary for the purposes of sub-paragraph (2).

(4) Where a ship is required to be taken to a place under sub-paragraph (2)(c), the relevant officer may require any person on board the ship to take such action as is reasonably necessary to ensure that person is taken to that place or to any other place determined by the relevant officer.

(5) Where a ship is required to leave United Kingdom waters under sub-paragraph (2)(d), the relevant officer may require any person on board the ship to take such action as is reasonably necessary to ensure that person leaves United Kingdom waters.

(6) The authority of the Secretary of State is required before a relevant officer may exercise the power under sub-paragraph (2)(c) to require the ship to be taken to any place—

(a) within a State other than the United Kingdom, or

(b) within a relevant territory.

(7) But a relevant officer acting under authority given under section 28LA(3)(c) or (d) in relation to a foreign ship or a ship registered under the law of a relevant territory may require the ship to be taken to a place mentioned in sub-paragraph (8) without authority under sub-paragraph (6).

(8) Those places are—

(a) a place in the home state or relevant territory in question, or

(b) if the home state or relevant territory requests, a place in any other State or relevant territory willing to receive the ship.

(9) A relevant officer must give notice in writing to the master of any ship detained under this paragraph.

(10) The notice must state that the ship is to be detained until the notice is withdrawn by the giving of a further notice in writing signed by a relevant officer.

(11) The requirement to give notice under sub-paragraph (9) does not apply where it is not reasonably possible to identify who is the master of the ship.

(12) In this paragraph “home state”, in relation to a foreign ship, means—

(a) the State in which the ship is registered, or

(b) the State whose flag the ship is otherwise entitled to fly.

Power to search and obtain information

C1 (1) This paragraph applies if a relevant officer has reasonable grounds to suspect that there is evidence on the ship (other than items subject to legal privilege) relating—

(a) to a relevant offence or,

(b) to an offence that is connected with a relevant offence.

(2) The relevant officer may search—

(a) the ship;

(b) anyone on the ship;

(c) anything on the ship (including cargo).

(3) The relevant officer may require a person on the ship to give information about themselves or about anything on the ship.

(4) The power to search conferred by sub-paragraph (2)—

(a) is only a power to search to the extent that it is reasonably required for the purpose of discovering evidence of the kind mentioned in sub-paragraph (1), and

(b) in the case of a search of a person, does not authorise a relevant officer to require the person to remove any clothing in public other than an outer coat, jacket or gloves.

(5) In exercising a power conferred by sub-paragraph (2) or (3) a relevant officer may—

(a) open any containers;

(b) require the production of documents, books or records relating to the ship or anything on it (but not including anything the relevant officer has reasonable grounds to believe is an item subject to legal privilege);

(c) make photographs or copies of anything the production of which the relevant officer has power to require.

(6) The power in sub-paragraph (5)(b) to require the production of documents, books or records includes, in relation to documents, books or records kept in electronic form, power to require the provision of the documents, books or records in a form in which they are legible and can be taken away.

(7) Sub-paragraph (5) is without prejudice to the generality of the powers conferred by sub-paragraphs (2) and (3).

(8) A power conferred by this paragraph may be exercised on the ship or elsewhere.

Power of arrest and seizure

D1 (1) This paragraph applies if a relevant officer has reasonable grounds to suspect that a relevant offence has been, or is being, committed on the ship.

(2) The relevant officer may arrest without a warrant anyone whom the officer has reasonable grounds for suspecting to be guilty of the offence.

(3) The relevant officer may seize and retain anything found on the ship which appears to the officer to be evidence of the offence (but not including anything that the officer has reasonable grounds to believe to be an item subject to legal privilege).

(4) A power conferred by this paragraph may be exercised on the ship or elsewhere.

Protective searches of persons

E1 (1) A relevant officer may search a person found on the ship for anything which the officer has reasonable grounds to believe the person might use to—

(a) cause physical injury,

(b) cause damage to property, or

(c) endanger the safety of any ship.

(2) The power conferred by sub-paragraph (1) may be exercised—

(a) only if the officer has reasonable grounds to believe that anything of a kind mentioned in that sub-paragraph is concealed on the person, and

(b) only to the extent that it is reasonably required for the purpose of discovering any such thing.

(3) The relevant officer may seize and retain anything which the officer has grounds to believe might—

(a) cause physical injury,

(b) cause damage to property, or

(c) endanger the safety of any ship.

(4) If the person is detained, nothing seized under sub-paragraph (3) may be retained when the person is released from detention.

(5) A power conferred by this paragraph to search a person does not authorise a relevant officer to require the person to remove any clothing in public other than an outer coat, jacket or gloves, but it does authorise the search of a person’s mouth.

(6) A power conferred by this paragraph may be exercised on the ship or elsewhere.

Search for nationality documents

F1 (1) A relevant officer may require a person found on the ship to produce a nationality document.

(2) The relevant officer may search a person found on the ship where the officer has reasonable grounds to believe that a nationality document is concealed on the person.

(3) The power conferred by sub-paragraph (2) may be exercised—

(a) only if the officer has reasonable grounds to believe that a nationality document is concealed on the person, and

(b) only to the extent that it is reasonably required for the purpose of discovering any such document.

(4) Subject as follows, the officer may seize and retain a nationality document for as long as the officer believes the person to whom it relates will arrive in the United Kingdom by virtue of the exercise of the power under paragraph B1.

(5) The power to retain a nationality document under sub-paragraph (4) does not affect any other power of an immigration officer to retain a document.

(6) Where a nationality document has been seized and retained by a relevant officer who is not an immigration officer, the document must be passed to an immigration officer as soon as is practicable after the ship has arrived in the United Kingdom.

(7) The power conferred by this paragraph to search a person does not authorise a relevant officer to—

(a) require the person to remove any clothing in public other than an outer coat, jacket or gloves, or

(b) seize and retain any document the officer has reasonable grounds to believe to be an item subject to legal privilege.

(8) In this paragraph a “nationality document”, in relation to a person, means any document which might—

(a) establish the person’s identity, nationality or citizenship, or

(b) indicate the place from which the person has travelled to the United Kingdom or to which the person is proposing to go.

(9) A power conferred by this paragraph may be exercised on the ship or elsewhere.

Assistants

G1 (1) A relevant officer may—

(a) be accompanied by other persons, and

(b) take equipment or materials,

to assist the officer in the exercise of powers under this Part of this Schedule.

(2) A person accompanying a relevant officer under sub-paragraph (1) may perform any of the officer’s functions under this Part of this Schedule, but only under the officer’s supervision.

Reasonable force

H1 A relevant officer may use reasonable force, if necessary, in the performance of functions under this Part of this Schedule.

Evidence of authority

I1 A relevant officer must produce evidence of the relevant officer’s authority if asked to do so.

Protection of relevant officers

J1 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.

Offences under the law of England and Wales

K1 (1) A person commits an offence under the law of England and Wales if the person—

(a) intentionally obstructs a relevant officer in the performance of functions under this Part of this Schedule in England and Wales, England and Wales waters, foreign waters or international waters, or

(b) fails without reasonable excuse to comply with a requirement made by a relevant officer in the performance of such functions.

(2) A person who provides information in response to a requirement made by a relevant officer in the performance of functions under this Part of this Schedule in England and Wales, England and Wales waters, foreign waters or international waters commits an offence under the law of England and Wales if—

(a) the information is false in a material particular, and the person either knows it is, or is reckless as to whether it is, or

(b) the person intentionally fails to disclose any material particular.

(3) A relevant officer may arrest without warrant anyone whom the officer has reasonable grounds for suspecting to be guilty of an offence under this paragraph.

(4) A person guilty of an offence under this paragraph is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.

(5) In the application of sub-paragraph (4) in relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 the reference to 51 weeks is to be read as a reference to 6 months.

Offences under the law of Scotland

L1 (1) A person commits an offence under the law of Scotland if the person—

(a) intentionally obstructs a relevant officer in the performance of functions under this Part of this Schedule in Scotland, Scotland waters, foreign waters or international waters, or

(b) fails without reasonable excuse to comply with a requirement made by a relevant officer in the performance of such functions.

(2) A person who provides information in response to a requirement made by a relevant officer in the performance of functions under this Part of this Schedule in Scotland, Scotland waters, foreign waters or international waters commits an offence under the law of Scotland if—

(a) the information is false in a material particular, and the person either knows it is, or is reckless as to whether it is, or

(b) the person intentionally fails to disclose any material particular.

(3) A relevant officer may arrest without warrant anyone whom the officer has reasonable grounds for suspecting to be guilty of an offence under this paragraph.

(4) A person guilty of an offence under this paragraph is liable on summary conviction to imprisonment for a term not exceeding 12 months, to a fine not exceeding level 5 on the standard scale or to both.

Offences under the law of Northern Ireland

M1 (1) A person commits an offence under the law of Northern Ireland if the person—

(a) intentionally obstructs a relevant officer in the performance of functions under this Part of this Schedule in Northern Ireland, Northern Ireland waters, foreign waters or international waters, or

(b) fails without reasonable excuse to comply with a requirement made by a relevant officer in the performance of such functions.

(2) A person who provides information in response to a requirement made by a relevant officer in the performance of functions under this Part of this Schedule in Northern Ireland, Northern Ireland waters, foreign waters or international waters commits an offence under the law of Northern Ireland if—

(a) the information is false in a material particular, and the person either knows it is, or is reckless as to whether it is, or

(b) the person intentionally fails to disclose any material particular.

(3) A relevant officer may arrest without warrant anyone whom the officer has reasonable grounds for suspecting to be guilty of an offence under this paragraph.

(4) A person guilty of an offence under this paragraph is liable on summary conviction to a term not exceeding 6 months, to a fine not exceeding level 5 on the standard scale or to both.”

11 In paragraph 1(1)—

(a) omit “immigration officers,” and

(b) omit “and enforcement officers”.

12 In paragraph 4—

(a) in sub-paragraph (2) omit “constable or”, and

(b) in sub-paragraph (3) omit “constable or”.

13 In paragraph 6—

(a) omit sub-paragraph (5), and

(b) in sub-paragraph (6), for the words from “Where” to “the document” substitute “A nationality document that has been seized and retained by a relevant officer”.

14 In paragraph 12(1)—

(a) omit “immigration officers,”, and

(b) omit “and enforcement officers”.

15 In paragraph 17—

(a) omit sub-paragraph (5), and

(b) in sub-paragraph (6), for the words from “Where” to “the document” substitute “A nationality document that has been seized and retained by a relevant officer”.

16 In paragraph 23—

(a) omit “immigration officers,” and

(b) omit “and enforcement officers”.

17 In paragraph 26(3) omit “constable or”.

18 In paragraph 28—

(a) omit sub-paragraph (5), and

(b) in sub-paragraph (6), for the words from “Where” to “the document” substitute “A nationality document that has been seized and retained by a relevant officer”.