Strip‐Searching for Nationality Documents
| Published date | 01 May 2021 |
| Author | Amanda Spalding |
| Date | 01 May 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12591 |
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Modern Law Review
DOI:10.1111/1468-2230.12591
Strip-Searching for Nationality Documents
Amanda Spalding∗
Section 51 of the UK’sImmig ration Act 2016 introduceda new power to conduct strip-searches
for nationality documents on those held in immigration detention or in prisons. Unlike in
previous caselaw, the goalofthis newpower appearsto beadministrative eciency,ratherthan
safety and security.This article describes the wider legal context of the measure and analyses it
from a human rights perspective.This includes an in-depth examination of the administrative
justication for this new poweras well as a critical look at some of the issues with str ip-searching
in practice.
INTRODUCTION
Section 51 of the UK’s Immigration Act 2016 introduced a new power to con-
duct strip-searches for nationality documents. This power can only be carried
out on those held in immigration detention or in prisons. The policy has at-
tracted little scholarly attention, but it represents the expansion of an invasive
power beyond the criminal justice realm and into the administrative sphere.Un-
like previous strip-searching measures,the new power is not related to concerns
about safety and security.Rather,it is intended to speed up the administrative
process of deportations, although there are reasons to be sceptical that it will be
particularly eective at achieving this aim.
This article seeks to provide an overview of this new power and its rationale,
as well as to examine its legality and acceptability from a human rights perspec-
tive.Thearticleisstructured asfollows. Therstsection providessome context
for this new power,demonstrating that this is not an isolated development but
rather ts with a wider pattern of introducing criminal law,criminal justice
style practices and discourse into the formerly administrative area of immigra-
tion law.It also relates the new power to the broader political desire for control
over the migrant body.The second section provides a detailed overview of the
new power to strip-search for nationality documents contained in section 51
of the Immigration Act 2016, including a discussion of the particulars of what
kind of strip-search may be carried out as well as what is meant by the term ‘na-
tionality documents’. The third section considers the legality of strip-searches
generally under human rights law by examining the case law of the European
Court of Human Rights (ECtHR) on this topic. This section identies the
∗Senior Lecturer in Law and Criminology, Canterbury Christ Church University.I would like to
thank Aveek Bhattacharya and the reviewers and editors for their helpful and constructive feedback
on earlier drafts of this article.
© 2020 The Author.The Modern Law Review © 2020 The Modern Law Review Limited.(2021) 84(3) MLR 456–476
Amanda Spalding
typical factors with which the Court scrutinises the legality of strip-searches.
The fourth section considers the application of these principles to the UK gov-
ernment’s new strip-searching power.Since this new power is grounded in an
administrative eciency rationale and little prior case law has considered this as
a basis for strip-searching, the Court’s prior approach is of limited use.As such,
the section provides an in-depth examination of the administrative rationale
behind the new power including a discussion of the construction of migrants
as non-compliant by the Home Oce.The fth section details some of the
other criticisms that can be levied at the new power, as well as strip-searching
generally, by considering the relationship between strip-searches and sexual vi-
olence, the potentialconsequences ofstrip-searchingasylum seekers, andthe
evidence on the eectiveness of strip-searches as a safety and security measure.
UNDERSTANDING THEWIDERCONTEXT: THE
CRIMINALISATION OF IMMIGRATION
While this article focuses exclusively on the new strip-searching powers intro-
duced by the Immigration Act 2016,it is impor tant to understand its wider con-
text. This is not an isolated piece of legislation but part of a much broader trend
of criminalising immigration in Europe, as well as the USA and Australia. The
criminalisation of immigration can refer to many aspects of the treatment of im-
migrants, including the increased use of criminal law to deal with immigration,
the broad range of criminal justice style practices associated with immigration
control,and media and political discourse framing migrants as criminals.1In
the UK, there are numerous examples of the criminalisation phenomenon in
action. From 1997 to 2016, 89 new immigration oences where introduced,2
the most signicant increase since the inception of the modern British immi-
gration system in the Aliens Act 1905. Similarly,although the power to detain
migrants has a long history,recent years have seen a rapid and well-documented
expansion in the use of this power.3In 2018 24,748 people (including children)
1J.Stumpf, ‘The Crimmigration Crisis: Immigrants,Cr ime and SovereignPower’(2006) 56 Amer-
ican University Law Review 367; J.Parkin, ‘TheCriminalisationof Migrationin Europe: AState-
of-the-Art ofthe AcademicLiterature andResearch’Centrefor European PolicyStudies,CEPS
Paper in Liberty and Security in Europe No 61, October 2013 at https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=2350119 (last accessed 9 September 2019).
2A. Aliverti,‘Immig ration Oences: Trends in Leg islation andCriminaland CivilEnforcement’
Migration Observatory 12 October 2016 at https://migrationobservatory.ox.ac.uk/resources/
briengs/immigration-oences-trends-in-legislation-and-criminal-and-civil-enforcement/
(last accessed 6 September 2019).
3See forexample M. Welch and L. Schuster, ‘Detentionof AsylumSeekers intheUS, UK,
France, Germany andItaly: ACr itical View oftheGlobalizing Culture ofControl’ (2005) 5
Criminal Justice 331; E. Guild, ‘The Cr iminalisation of Migrationin Europe: Human Rights
Implications’ Commissioner forHumanRights, Council ofEurope, 4 Feb2010, 22at https:
//www.refworld.org/docid/4b6a9fef2.html (lastaccessed 29October 2019); S. Silverman, ‘Re-
grettable But Necessary? A Historical and Theoretical of the Rise of the UK Immigration
Detention EstateandIts Opposition’ (2012)40Politics and Policy 1131; Houseof Commons
Home Aair s Committee, Immigration Detention HC 913 (21 March 2019) 6.
© 2020 The Author.The ModernLaw Review © 2020 The Modern Law Review Limited.
(2021) 84(3) MLR 456–476457
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