Anti-Smuggling of Migrants Bill, 2024

No. of 2024 Anti-Smuggling of Migrants Bill, 2024 Saint Christopher and Nevis

ARRANGEMENT OF SECTIONS

PART 1

PRELIMINARY

Section

1. Short title and commencement

2. Interpretation

3. Objects

4. Application of the Act

5. Jurisdiction

PART 2

AGENCY FOR THE PREVENTION AND COUNTERING OF THE SMUGGLING OF MIGRANTS

6. Establishment of Agency for the Prevention and Countering of the Smuggling of Migrants

7. Functions and powers of the Agency

PART 3

OFFENCES

8. Offence of smuggling of migrants

9. Attempts

10. Participating as an accomplice

11. Organizing or directing

12. Offences in relation to fraudulent travel or identity documents

13. Smuggling of migrants and enabling illegal stay

14. Harbouring or attempts to harbour migrants

15. Abetment and criminal conspiracy

16. Principle of proportionality in sentencing

17. Aggravating and mitigating circumstances

18. Ancillary measures

19. Immunity from prosecution of smuggled migrants

20. Duties of Master, Captain or Agent of a Conveyance

21. Facilitating entry or stay for justice processes

PART 4

PROTECTION AND ASSISTANCE

22. Right to urgent medical care

23. Protection of migrants against violence

24. Assistance to migrants whose lives or safety are in danger

25. Civil proceedings

26. Other rights

27. Smuggled migrants who are children

28. Access to consular officials for smuggled migrants

PART 5

COORDINATION AND COOPERATION

29. Responsibilities of the Minister

PART 6

COOPERATION REGARDING THE SMUGGLING OF MIGRANTS AT SEA

30. Extended Jurisdiction

31. Designation of competent national authority

32. Conditions and limitations on the exercise of special enforcement powers by authorised officers

33. Operational framework for measures at sea

34. Safeguards in relation to danger to lives at sea

35. Compensation for loss or damage

36. Indemnity of Government officials

PART 7

PROCESSES RELATED TO THE RETURN OF SMUGGLED MIGRANTS

37. Referral of migrants with specific protection needs

38. Ensuring safety in exchange of information

39. Legitimacy and validity of documents

40. Facilitating the return of smuggled migrants

41. Protection of smuggled migrants in the return process

42. Protection of existing arrangements

PART 8

MISCELLANEOUS

43. Prevailing law

44. Offence by body corporate

45. Regulations

A BILL to give effect to the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime and to provide for related matters

BE IT ENACTED by the Kings Most Excellent Majesty by and with the advice and consent of the National Assembly of Saint Christopher and Nevis and by the authority of the same as follows:

PART 1

PRELIMINARY

1. Short title.

This Act may be cited as the Anti-Smuggling of Migrants Bill, 2024.

2. Interpretation.

In this Act, unless the context otherwise requires:

“Agency” means the Agency for Anti-Smuggling of Migrants established under Part 2 and includes a national task force or a national coordination committee;

“authorised officer” means a person authorised by the State to enforce the provisions of this Act;

“child” means a person under the age of eighteen years;

“commercial carrier” means a legal or natural person who engages in the transportation of goods or people for commercial gain;

“conveyance” means every means of transport by land, water or air of human beings or property;

“financial or other material benefit” includes any type of financial or non-financial inducement, payment, bribe, reward, advantage, privilege or service, including sexual or other services;

“illegal entry” means crossing borders without complying with the necessary requirements for legal entry into the receiving State;

“migrant” means a person who travels or intends to travel from one country to another;

“national” incudes a skilled national within the meaning of the Revised Treaty of Chaguaramas;

“non-refoulement” means the prohibition of the return by a State, in any manner, of an individual to the borders of territories where –

(a) his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion, in accordance with the 1957 Convention Relating to the Status of Refugees or any other binding legal obligation including a peremptory norm of customary international law;

(b) his or her life or freedom would run the risk of torture, inhumane and degrading treatment or other forms of irreparable harm, in accordance with the 1987 Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment or any other binding legal obligation including a peremptory norm of customary international law; or

(c) there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance, in accordance with the 2010 International Convention for the Protection of All Persons from Enforced Disappearance;

“Protocol” means the UN Doc. A/RES/55/25, Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime;

“Protocol State” means a State party to the Protocol;

“refoulement” includes any action having the effect of returning an individual to a State, including expulsion, deportation, extradition, rejection at the border, extraterritorial interception and physical return;

“Minister” means the Minister with responsibility for National Security;

“serious crime” means conduct constituting an offence punishable with imprisonment for a term of four years or more;

“smuggling of migrants” means the facilitation, for benefit, of illegal entry –

(a) into Saint Christopher and Nevis, where the person is not a national or a resident of Saint Christopher and Nevis; or

(b) into another country, where the person is a national or a resident of Saint Christopher and Nevis, but not a citizen or resident of the other country;

(c) into another country from Saint Christopher and Nevis, where the person is not a citizen or resident of the other country, whether or not the person is a citizen or resident of Saint Christopher and Nevis;

“smuggled migrant” means any person who has been the object of conduct prohibited under section 8 of this Act, regardless of whether the perpetrator is identified, apprehended, charged, prosecuted or convicted;

“unaccompanied child” means a child who has been separated from both parents and other relatives and is not being cared for by an adult who, by law or custom, is responsible for doing so; and

“vessel” means any type of watercraft, including non-displacement craft and seaplanes, used or capable of being used as a means of transportation on water, except a warship, naval auxiliary or other vessel owned or operated by a government and used, for the time being, only on government non-commercial service.

3. Objects

The objects of this Act are to

(a) prevent and combat the smuggling of migrants;

(b) protect the rights of smuggled migrants; and

4. Application of the Act

(1) This Act shall be interpreted and applied in a way that

(a) is not discriminatory on any ground, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status;

(b) is consistent with the principle of non-refoulement;

(c) is consistent with other obligations arising from the obligations of Saint Christopher and Nevis under international law; and

(d) accounts for the special needs of smuggled migrants who are women and children or who otherwise have special needs.

(2) This Act shall apply to all forms of smuggling of migrants, whether or not connected with an organized criminal group.

5. Jurisdiction

(1) The offences under this Act apply, regardless of whether the conduct constituting the offence took place inside or outside Saint Christopher and Nevis and whatever the nationality or citizenship of the offender, in the following circumstances:

(a) if Saint Christopher and Nevis is the receiving country or transit country or the exploitation occurs in Saint Christopher and Nevis; or

(b) if the receiving country or transit country is a foreign country but the trafficking in persons or smuggling of migrants starts in Saint Christopher and Nevis or transits through Saint Christopher and Nevis.

(2) This Act shall also apply to any offence established under this Act when- (a) the smuggled migrant is a national or resident of Saint Christopher and Nevis; (b) the offence is committed by a Saint Christopher and Nevis national or resident;

(c) the offence is committed outside the territory of Saint Christopher and Nevis with a view to the commission of a serious crime within the territory of Saint Christopher and Nevis.

PART 2

AGENCY FOR THE PREVENTION AND COUNTERING OF THE SMUGGLING OF MIGRANTS

6. Establishment of Agency for Counter-Smuggling of Migrants

(1) There is established, for the purposes of this Act, a body to be known as the Agency for the Prevention and Countering of the Smuggling of Migrants.

(2) The Agency shall consist of the following members:

(a) the Permanent Secretary or a senior representative of the Ministry responsible for National Security, who shall be the Chairman;

(b) the Permanent Secretary or a senior representative of the Ministry responsible for Foreign Affairs;

(c) the Permanent Secretary or a senior representative of the Ministry responsible for Gender Affairs and Social Services and Community Development;

(d) the Permanent Secretary or a senior representative of the Ministry responsible for international transport;

(e) the Attorney General or his or her senior representative;

(f) the Commissioner of Police or his or her senior representative;

(g) the Chief of Immigration or his or her senior representative;

(h) the Comptroller of Customs or his or her senior representative;

(i) the Director of Maritime Affairs or his or her senior representative;

(j) two persons from non-governmental organizations or other relevant organizations having appropriate experience, knowledge and expertise on problems and issues related to smuggled persons including the protection and support of trafficked persons, to be appointed by the Minister.

(3) Each member of the Agency appointed under subsection (2)(j) shall, unless he or she sooner resigns, hold office for a period not exceeding two years and shall be eligible for re-appointment.

7. Functions and powers of the Agency

(1) The Agency shall perform the following functions:

(a) coordinating the implementation of this Act;

(b) formulating policies and programmes to prevent and combat smuggling of migrants;

(d) initiating education programmes to increase public awareness of the causes and consequences of the act of smuggling of migrants;

(e) monitoring the immigration and emigration patterns in Saint Christopher and Nevis for evidence of smuggling of migrants;

(f) securing the prompt response of the relevant government agencies and non governmental organizations relating to issues concerning trafficking in persons and smuggling of migrants brought to its attention;

(g) advising the Government on the issues of smuggling of migrants including developments at the international level against the smuggling of migrants; and (h) making recommendations to the Minister on all aspects of the prevention and countering of the smuggling of migrants;

(i) coordinating the formulation of policies and monitoring the implementation of such policies on issues of smuggling of migrants in conjunction with relevant government agencies and non-governmental organizations;

(j) cooperating and coordinating with governments and international organizations on smuggling of migrants;

(k) collecting and collating data and information, and authorising research, in relation to the prevention and combating of smuggling of migrants; and

(l) performing any other functions for the proper implementation of this Act.

(2) The Agency may establish such committees as it considers necessary or expedient to assist it in the performance of its functions and the exercise of its powers under this Act.

(3) The Agency shall have its Secretariat within the Ministry of National Security.

(4) The Agency shall have all such powers as may be necessary for, or in connection with, or reasonably incidental to, the performance of its functions.

PART 3

OFFENCES

8. Offences of Smuggling of Migrants.

(1) A person who, with intent to obtain directly or indirectly a financial or other material benefit

(a) engages in

(i) conduct preliminary to smuggling, by sea or air, of persons who are not citizens or legal residents of Saint Christopher and Nevis by not complying with the requirements for legal entry pursuant to the provisions of the Immigration Act; or

(ii) smuggling, by sea or air, of persons who are not citizens or legal residents of Saint Christopher and Nevis;

(b) while engaging in conduct referred to in paragraph (a)

(i) produces a fraudulent travel or identity document; or

(ii) procures, provides or possesses the

document referred to in sub-paragraph (i); or

(c) arranges to have a person who is not a citizen or legal resident of Saint Christopher and Nevis to remain in Saint Christopher and Nevis in contravention of the requirements set out in the Immigration Act, commits the offence of smuggling of persons.

(2) Where, in committing an offence under subsection (1), a person

(a) endangers or takes action that is likely to endanger the lives of the persons concerned; or

(b) engages in inhumane or degrading treatment in relation to the persons concerned, that person, in addition to the offence of smuggling, commits the offence with aggravation.

(3) Where, in proceedings brought under subsection (1), evidence is found that a vessel is engaged in the smuggling of migrants by sea, the vessel may be seized and forfeited.

(4) In this section,

(a) “fraudulent travel or identity document” means any travel or identity document that

(i) has been falsely made or is altered in some material way by a person other than a person lawfully authorized to make, issue or alter the travel or identity document pursuant to the Immigration Act;

(ii) has been improperly issued or obtained through fraud, misrepresentation, bribery or in any other unlawful manner without the authorization of the issuing jurisdiction;

(iii) is being used by a person other than the rightful holder; and

(b) “vessel” means any type of watercraft that is capable of being used for transportation on water.

(5) A person who commits an offence of smuggling under this section shall be liable

(a) on summary conviction, to a fine of two hundred thousand dollars or imprisonment for eight years or both; and

(b) on conviction on indictment, to a fine of three hundred thousand dollars or to imprisonment for fifteen years or both.

(6) A person who commits an offence of aggravation under this section shall be liable

(a) on summary conviction, to a fine of two hundred and fifty thousand dollars or imprisonment for twelve years or both; and

(b) on conviction on indictment, to a fine of five hundred thousand dollars or to imprisonment for twenty years or both.

9. Smuggling and Facilitation of Illegal Entry.

A person who, in order to obtain directly or indirectly a financial or other material benefit intentionally

(a) smuggles a person into a Protocol State; or

(b) procures or facilitates the illegal entry of a person into a Protocol State of which the person is not a national or a resident commits an offence and is liable on conviction to two hundred thousand dollars or to imprisonment for seven years or both.

10. Attempts.

A person who attempts to commit an offence under section 8 commits an offence and is liable on conviction to a fine of one hundred and fifty thousand dollars or to imprisonment for five years.

11. Participating as an accomplice

A person who participates as an accomplice to an offence under this Part commits an offence and is liable on conviction to a fine of two hundred and fifty thousand dollars or to imprisonment for seven years.

12. Organising or directing

A person who organises or directs another person to commit an offence under section 8, commits an offence and is liable on conviction to a fine of two hundred and fifty thousand dollars or to imprisonment for seven years.

13. Offences in relation to fraudulent travel or identity documents

Any person who intentionally, in order to obtain directly or indirectly a financial or other material benefit

(a) produces or attempts to produce a fraudulent travel or identity document for the purpose of enabling the smuggling of migrants; or

(b) procures, provides, or possesses, or attempts to procure, provide, or possess a fraudulent travel or identity document for the purpose of enabling the smuggling of migrants, commits an offence and is liable on conviction to a sum of fifty thousand dollars or to imprisonment for one year or to both.

14. Enabling illegal stay

Any person who intentionally, in order to obtain directly or indirectly a financial or other material benefit, procures, facilitates or promotes, or attempts to procure, facilitate or promote the actual or intended stay in Saint Christopher and Nevis or a Protocol State of another person commits an offence and is liable on conviction to a fine of two hundred and thousand dollars or to imprisonment for seven years or to both.

15. Harbouring or attempts to harbour migrants

Any person who intentionally

(a) in order to obtain directly or indirectly, a financial or other material benefit; and (b) for the purpose of exploitation, whether by himself or another person,

harbours or attempts to harbour a person commits an offence and is liable on conviction to a fine not exceeding one hundred thousand dollars or to imprisonment for two years or to both.

16. Abetment and criminal conspiracy

Any person who abets or conspires to commit an offence under section 8, commits an offence and is liable upon conviction to a fine of one hundred thousand dollars or to imprisonment for two years or to both.

17. Aggravating and Mitigating Circumstances

(1) When making a determination in respect of the sentence for an offence under Part 3, a court may consider any of the following aggravating factors:

(a) the circumstances endangered or were likely to endanger the life or safety of the smuggled migrant;

(b) the circumstances entailed inhumane or degrading treatment, including exploitation of the smuggled migrants;

(c) the circumstances involved serious injury or death of the smuggled migrant or another person, including death as a result of suicide;

(d) the offender abused or exploited a particular vulnerability or dependency of the smuggled migrant for financial or other material gain;

(e) the offender has committed the same or similar offences before;

(f) the circumstances formed part of the activity of an organised criminal group or a group of persons;

(g) the circumstances involved the use of drugs, medications or weapons in the commission of the offence;

(h) the offence involved more than ten smuggled migrants;

(i) the offender was, at the relevant time, a public official;

(j) the circumstances involved the offender abusing his or her position of authority or position as a public official in the commission of the offence;

(k) the smuggled migrant was, at the relevant time, a child;

(l) the offender used a child as an accomplice or participant in the criminal conduct; (m) the smuggled migrant is pregnant;

(n) the smuggled migrant has an intellectual or physical disability;

(o) the circumstances involved the use or threatened use of any form of violence against the smuggled migrant or his or her family;

(p) the offender confiscated, destroyed or attempted to destroy the travel or identity documents of the smuggled migrant.

(2) For the purpose of this section, a court may consider, when sentencing for offences under Part 3 of this Act, whether the accused person has provided substantial cooperation in the investigation or prosecution of an offence covered by this Act.

18. Ancillary measures

Where a person has been convicted of an offence under this Act, a court may, in addition to any other penalty imposed under this Act and subject to the Proceeds of Crime Act and without limiting any other powers of the court, order the following measures:

(a) confiscation of assets, proceeds of crime and instruments of crime;

(b) payment of restitution or compensation to victims of crime;

(d) prohibiting the exercise, directly or indirectly, of one or more social or professional activities permanently or for a maximum period of two years; (e) temporary or permanent closure of any establishment or enterprise that was used to commit the offence in question;

(f) exclusion from public bidding or from entitlement to public benefits or aid; (g) temporary or permanent disqualification from participation in public procurement;

(h) temporary or permanent disqualification from practice of other commercial activities or from creation of another legal person; and

(i) any other non-custodial measures, as appropriate.

19. Immunity from prosecution of smuggled migrants

Without prejudice to the applicability of other laws establishing criminal offences, a smuggled migrant shall not be liable to criminal prosecution in respect of—

(a) his or her illegal entry into the receiving country or transit country;

(b) his or her period of illegal stay in the receiving country or transit country; or (c) his or her procurement or possession of any fraudulent travel or identity document which he obtained, or with which he was supplied, for the purpose of entering the receiving country or transit country, where such acts are the direct consequence of an act of smuggling in persons that is alleged to have been committed or was committed, where such acts were as a result of him or her having been the object of conduct prohibited by section 8.

20. Duties of Master, Captain or Agent of a Conveyance

(1) A master, captain or agent of a conveyance that fails to verify that every passenger possesses the relevant identity or travel documents required to enter the destination State and any transit State, commits an offence and is liable on conviction to a fine of one hundred thousand dollars.

(2) A master, captain or agent of a conveyance that fails to notify the competent authorities that a person has attempted to or has travelled on that carrier without the identity and travel documents required to enter the destination State or any transit State with knowledge or in reckless disregard of the fact that the person was a smuggled migrant, commits an offence and, in addition to any other penalty provided in any other law or enactment, is liable on conviction to a fine of one hundred and fifty thousand dollars.

(3) A master or captain or agent of a conveyance is not liable to a fine under this section if-

(a) there were reasonable grounds to believe that the documents that the transported person has are the travel documents required for lawful entry in Saint Christopher and Nevis;

(b) the transported person possessed the lawful travel documents when they boarded the vessel or when they last boarded the means of transport to travel to Saint Christopher and Nevis;

(c) the entry into Saint Christopher and Nevis occurred only because of circumstances beyond the control of the commercial carrier; or

(d) the entry into Saint Christopher and Nevis resulted from a rescue at sea; or

(e) the person transported was provided protection against refoulement or access to the asylum system by the competent authorities.

21. Facilitating entry or stay for justice processes

The Minister may grant a temporary residence permit to a smuggled migrant in order to facilitate the investigation or prosecution of an offence under this Act or to facilitate his or her recovery or rehabilitation.

PART 4

PROTECTION AND ASSISTANCE

22. Right to urgent medical care.

(1) Smuggled migrants shall have the right to receive any appropriate medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of Saint Christopher and Nevis.

(2) The emergency medical care under subsection (1) shall not be refused to smuggled migrants by reason of any irregularity with regard to their entry or stay in Saint Christopher and Nevis.

23. Protection of migrants against violence

(1) The Minister shall take appropriate measures to afford migrants adequate protection against violence that may be inflicted upon them, whether by individuals or groups, by reason of being the object of conduct described in section 8.

(2) The measures referred to in subsection (1) shall take into account the special needs of women and children.

25. Assistance to migrants whose lives or safety are in danger

(1) The Agency shall afford appropriate assistance to migrants whose lives or safety are endangered by reason of being the object of conduct described in section 8 of this Act.

(2) These measures shall take into account the special needs of women and children.

26. Civil Proceedings

(1) A smuggled migrant who has been subjected to violence, torture or other cruel, inhumane, or degrading treatment or punishment, or threats to his or her life or safety as a result of being the object of an offence under this Act, shall have the right to institute civil proceedings against the person who smuggled the migrant to claim damages for harm suffered as a result of these acts.

(2) The right to pursue civil proceedings for damages shall not be affected by the existence of criminal proceedings in connection with the same acts from which the civil claim derives.

(3) The immigration status or return of the smuggled migrant to his or her home country or other absence of the smuggled migrant from the jurisdiction shall not prevent the court from ordering payment of compensation under this section.

24. Other rights.

The Agency shall afford smuggled migrants other rights, including, the provision of food, clothing, shelter, documentation, interpretation and translation, and respect for their privacy and confidentiality.

26. Smuggled migrants who are children

(1) In addition to any other protections provided for in this Act, in all actions by government officials, agencies and the courts concerning smuggled migrants who are children, the primary consideration shall be the best interests of the child.

(2) Where the age of a smuggled migrant is uncertain and there are reasons to believe that the smuggled migrant may be a child, he or she shall be presumed to be a child pending verification of his or her age.

(3) Any interview or examination of a smuggled migrant who is a child shall be conducted by a specially trained professional, in a suitable environment, in a language that the child uses and understands and in the presence of the child’s parent, or legal guardian or an appropriate support person assigned or approved by the Ministry of Social Development.

(4) Smuggled migrants who are children shall have the right of access to education, which shall not be refused or limited by reason of their irregular entry or situation, or that of their parents.

(5) Smuggled migrants who are children shall not be held in detention but shall be placed under the care of the Probation and Child Welfare Board appropriate child protection services.

(6) If a smuggled migrant is an unaccompanied child, the Agency shall-

(a) appoint a legal guardian to represent the interests of the child;

(b) take all necessary steps to establish his or her identity and nationality; and

(c) make every effort to locate his or her family including for the purpose of facilitating family reunification where this is in the best interests of the child.

27. Access to consular officials for smuggled migrants

(1) Where a smuggled migrant has been arrested, detained or is in custody, the arresting or detaining authority is required to inform the smuggled migrant without delay about his or her right to communicate with consular officers, and all reasonable steps are to be taken to facilitate such communication.

(2) If the smuggled migrant expresses interest in making contact with consular officers, the arresting or detaining authority is required to notify the relevant consul or consuls that a national of that State has been arrested or detained, provide the location where the smuggled migrant is being held and facilitate contact.

(3) If a smuggled migrant indicates that they do not want to have contact with the consular office, that choice is to be respected.

(4) The entitlements of smuggled migrants who are being held in custody or detention as a measure of last resort shall include the right to-

(a) be given an option of an alternative to detention until case resolution;

(b) receive visits from consular officers;

(d) receive communications sent by consular authorities without delay;

(e) consult an attorney-at-law of their choosing;

(f) receive free legal assistance;

(g) interpretation and translation services; and

(h) other entitlements as may be appropriate to the particular circumstances of the case.

(5) The consent of a smuggled migrant to receive or not to receive or not to receive visits from a consular officer, pursuant to subsection 4, shall be set out in writing and kept on record.

PART 5

COORDINATION AND COOPERATION

Responsibilities of the Minister

28. The Minister shall-

(a) oversee and coordinate the implementation of this Act;

(b) take necessary steps and issue appropriate orders which are required to give effect to the provisions of the Act;

(d) develop a national plan of action to ensure comprehensive and effective implementation of this Act, which shall include a process of periodic review of achievement of aims and objectives;

(f) facilitate inter-agency and multidisciplinary cooperation between the various government agencies, international organizations and non governmental organizations;

(g) facilitate cooperation with relevant countries of origin, transit and destination, in particular border control agencies;

(h) disseminate relevant information, materials and provide training to professionals, including immigration, the Coast Guard and other law enforcement officers, who are likely to encounter smuggled migrants, to assist them to prevent and combat the smuggling of migrants, while protecting and preserving the rights of smuggled migrants;

(i) develop programmes and disseminate public information to increase public awareness of the fact that smuggling of migrants is a criminal activity frequently perpetrated by organized criminal groups for profit and that it poses a serious threat to the safety of smuggled migrants;

(j) promote and strengthen development programmes and cooperation at the national level, taking into account the socio-economic realities of migration and paying special attention to economically and socially depressed areas, in order to combat the root socio-economic causes of the smuggling of migrants, such as poverty and underdevelopment.

(k) provide special identification cards that reflect the status of the smuggled person.

PART 6

COOPERATION REGARDING THE SMUGGLING OF MIGRANTS AT SEA

29. Extended Jurisdiction

In addition to the jurisdiction provided for under Part 1, this Act shall apply to any offence established under this Act when the offence is engaged in outside Saint Christopher and Nevis on a vessel reasonably suspected of being engaged, directly or indirectly, in the smuggling of migrants by sea if-

(a) the vessel is without nationality or may be assimilated to a vessel without nationality;

(b) the vessel, although flying a foreign flag or refusing to show a flag, is in reality of the nationality of the State concerned; or

(c) the vessel is flying the flag or displaying the marks of registry of a Protocol State other than Saint Christopher and Nevis.

Designation of competent national authority

30. (1) For the purpose of facilitating cooperation between Saint Christopher and Nevis and other Protocol States to prevent and suppress the smuggling of migrants by sea, the Minister shall designate in writing an authority or authorities-

(a) to receive and respond to requests for assistance from Protocol States; (b) to transmit requests for assistance to Protocol States;

(c) to receive and transmit requests for confirmation of registry or of the right of a vessel to fly a flag other than the flag of Saint Christopher and Nevis, if the vessel is flying the flag or displaying the marks of registry of a Protocol State other than Saint Christopher and Nevis.

(2) The Minister shall afford requesting States the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Act.

31. Conditions and limitations on the exercise of special enforcement powers by authorised officers

(1) Any powers conferred on authorised officers under this Act shall be exercisable in relation to any vessel described in section 29 or section 32 for the purposes of detecting and taking appropriate action in respect of the smuggling of migrants by sea.

(2) Those powers shall not be exercised in relation to a vessel beyond the limits of the territorial sea of Saint Christopher and Nevis and flying the flag or displaying the marks of registry of another Protocol State except where-

(a) Saint Christopher and Nevis is exercising its right of control in its contiguous zone or the right of hot pursuit; or

(b) the Minister has given authority to exercise those powers.

(3) The Minister shall not give the authority under subsection (2)(b) unless he or she is satisfied that-

(a) the Protocol State has requested assistance of Saint Christopher and Nevis for the purposes of detecting or preventing the smuggling of migrants and taking appropriate action; or

(b) the Protocol State has authorised Saint Christopher and Nevis to act for that purpose.

(4) The powers conferred on authorised officers under this section shall not be exercised in the territorial sea of any other State without the authority of the Minister, who shall not give such authority unless that other State has consented to the exercise of those powers.

32. Operational framework for measures at sea.

(1) Any measure taken at sea pursuant to this Part shall be carried out only by other ships or aircraft including customs, coastguard and police vessels that are clearly marked and identifiable as being on government service and authorised to that effect.

(2) When taking measures against a vessel in accordance with this provision, an authorised officer is required to take all necessary steps to-

(a) afford migrants protection against violence that may be inflicted upon them, whether by individuals or groups, by reason of being the object of conduct prohibited by this Act;

(b) assist migrants whose lives or safety are endangered by reason of being the object of conduct prohibited by this Act;

(d) ensure the safety and humane treatment of the persons on board;

(e) ensure that any measures taken are compliant with human rights and humanitarian obligations, including the right to leave any country, the right to seek asylum and international protection, and the obligation of non refoulement;

(f) take due account of the need not to endanger the security of the vessel or its cargo;

(g) take due account of the need not to prejudice the commercial or legal interests of the flag State or any other interested State; and

(h) ensure, within available means, that any measure taken with regard to the vessel is environmentally sound.

33. Safeguards in relation to danger to lives at sea

Nothing in this Act affects the obligation of the State and of any person to conduct search and rescue operations and render assistance to those lost or in distress at sea without discrimination and proceed to promptly disembark in the nearest a place of safety.

34. Compensation for loss or damage

The holder of legal rights in the vessel is entitled to reasonable compensation for loss or damage sustained as a result of actions taken, or purportedly taken, by an officer authorised under this Act when the grounds for measures taken prove to be unfounded, except if the vessel or any person on the vessel has committed any act that would justify the measures taken.

35. Indemnity of Government officials

No suit, prosecution or other proceedings shall lie against the Government or any officer of the Government for anything in good faith done or intended to be done in pursuance of this Act or the regulations made thereunder.

PART 7

PROCESSES RELATED TO THE RETURN OF SMUGGLED MIGRANTS

36. Referral of migrants with specific protection needs

(1) In performing its functions under this Part, the Minister in consultation with the Agency shall ensure that smuggled migrants who are seeking international protection under national asylum laws, the Convention relating to the Status of Refugees or international law, or who have particular protection needs are quickly referred to the appropriate authorities to decide on their case.

(2) The Minister shall ensure that the Office of the United Nations High Commissioner for Refugees is given the necessary access to smuggled migrants who are asylum-seekers and other persons of concern to the Office.

37. Legitimacy and validity of documents

The Minister shall, at the request of the appropriate authority or representative of another Protocol State, verify within a reasonable time the legitimacy and validity of travel or identity documents issued or purported to have been issued in the name of Saint Christopher and Nevis and suspected of being used for the purposes of smuggling of migrants.

38. Facilitating the return of smuggled migrants

The Minister shall-

(a) at the request of the appropriate authority or representative of another Protocol State, verify without undue or unreasonable delay whether a smuggled migrant is a national or has the right of residence in that other State;

(b) at the request of the appropriate authority or representative of another Protocol State, facilitate the issue of documents or other authorisation as necessary to enable a smuggled migrant who is either a national of that other State or who has a right of residence in that State, to travel to, transit or re-enter that State; and/or

(c) at the request of the appropriate authority or representative of another Protocol State, of the smuggled migrant or of its own initiative, facilitate without undue or unreasonable delay, the return to that other State of a smuggled migrant who is a national of, or who had the right of residence in, that other State at the time of entry into the receiving State.

39. Protection of smuggled migrants in the return process.

(1) The Minister shall ensure that any planned or actual return of a smuggled migrant is consistent with International Human Rights, Refugee Law and Humanitarian Law, as well as the rights and freedoms provided for under the Constitution.

(2) In facilitating the return of smuggled migrants, the Minister shall take appropriate measures to ensure that any planned or actual return of smuggled migrants occurs in an orderly manner and with due regard for the safety and dignity of the persons involved.

(3) Every effort should be made to limit the use of force in the return process and the only forms of restraint which are acceptable are those constituting responses that are strictly proportional to the actual or reasonably anticipated resistance of the returnee with a view to controlling him or her.

40. Protection of existing arrangements.

Nothing in this Part prejudices any rights or remedies afforded or available to persons who have been the object of any offence related to smuggling of migrants under- (a) any other law;

(b) any obligations entered into under any applicable treaty, bilateral or multilateral; or (c) any other applicable operational agreement that governs, in whole or in part, the return of persons who have been the object of smuggling of migrants.

PART 8

MISCELLANEOUS

43. Prevailing law

(1) The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other written law relating to trafficking in persons and smuggling of migrants.

(2) In the event of any conflict or inconsistency between the provisions of this Act and those of any other written laws, the provisions of this Act shall prevail and the conflicting or inconsistent provisions of such other written laws shall, to the extent of the conflict or inconsistency, be deemed to be superseded.

44. Offence by body corporate

Where any offence against any provision of this Act has been committed by a body corporate, any person who at the time of the commission of the offence was a director, manager, secretary or other similar officer of the body corporate, or was purporting to act in any such capacity, or was in any manner responsible for the management of any of the affairs of such body corporate, or was assisting in such management, shall also be guilty of that offence unless such person proves that the offence was committed without his or her knowledge, consent or connivance, and that he or she exercised all such diligence to prevent the commission of the offence as ought to have exercised, having regard to the nature of his or her functions in that capacity and to all the circumstances.

45. Regulations

The Minister may make such regulations as are necessary or expedient to give full effect to, or for carrying out, the provisions of this Act.

…………………………………….

Lanein Blanchette

Speaker

Passed by the National Assembly this day of , 2024.

…………………………………..

Trevlyn Stapleton

Clerk of the National Assembly

The post Anti-Smuggling of Migrants Bill, 2024 first appeared on SKNIS.

Anti-Smuggling of Migrants Bill, 2024

Anti-Smuggling of Migrants Bill, 2024

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