As we reported last week, a recent letter from government lawyers clarified the Home Office’s position that “[s]ince July 2022… migrants who cross the Channel in small boats who are either rescued or directed to land at designated locations by the authorities are no longer deemed to be illegal entrants, but arriving passengers.” Does this mean they have done nothing illegal?

Until 27 June 2022, under section 24 of the Immigration Act 1971, a person would have been guilty of an offence if they knowingly entered the UK either in breach of a deportation order or without leave to remain. This was a summary offence. A summary offence is normally tried at a magistrates’ court and is generally considered less serious than other types of offences. This particular offence was punishable by a fine and/or up to 6 months’ imprisonment. In practice, people caught by the provision were mostly dealt with administratively, not prosecuted in the criminal courts.

Section 25 provided for the more serious offence of assisting unlawful immigration, which could be tried as a summary or indictable offence. If convicted on indictment, the maximum sentence was 14 years in prison. The Home Office and Crown Prosecution Service deployed this offence to prosecute people caught piloting small boats in the Channel.

However, section 11 provides that a person arriving in the UK by ship or aircraft, who then disembarks, is deemed not to have entered the UK while they remain in an approved place in a port. This position continues for as long as they are in immigration detention or on immigration bail.

In R v Kakaei [2021] EWCA Crim 503 and R v Bani [2021] EWCA Crim 1958 several people who had piloted small boats had their convictions for facilitating illegal entry under section 25 quashed. In Bani Edis LJ explained:

“71… As the law presently stands an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom in order to make a claim is not entering or attempting to enter the country unlawfully. Even though an asylum seeker has no valid passport or identity document or prior permission to enter the United Kingdom this does not make his arrival at the port a breach of immigration law…”

The decisions confirm that people who crossed the Channel by boat, and who were rescued or intercepted at sea and escorted to a port, were not illegal entrants. They also made it more difficult to use the section 25 offence. There is a requirement to prove that the person piloting the boat knew or had reasonable cause to believe that they were facilitating a breach or attempted breach of immigration law.

The government response was section 40 of the Nationality and Borders Act 2022. It amends section 24 of the Immigration Act 1971 to create two new offences:

1. Where a person who requires entry clearance under the immigration rules (almost certainly any small boat arrival) knowingly arrives in the UK without valid entry clearance (section 24(D1), commenced 28 June 2022).
2. Where a person is required under the immigration rules not to travel to the UK without an ETA knowingly arrives in the UK without such an ETA (section 24(E1), not yet commenced).

And the Explanatory Notes make clear that these provisions are aimed at people arriving by small boat, who are rescued at sea and brought or escorted to a port:

“404 [Section 40 of the 2022 Act] creates two new offences so that it encompasses arrival, as well as entry into the UK. The intention is that these new offences of people arriving in the UK without a required entry clearance (EC) or ETA apply to everyone who requires an EC or ETA on arrival. These offences will cover all asylum claimants who arrive without the necessary EC or ETA. As a matter of law, refugees will be in the scope of the offence but decisions on prosecutions remain a matter for the Crown Prosecution Service (CPS) in England and Wales, the Crown Office and Procurator Fiscal Service (COFPS) in Scotland, and the Public Prosecution Service (PPS) in Northern Ireland, who will take into account the public interest test.

405 This will allow prosecutions of individuals who are intercepted in UK territorial seas and brought into the UK who arrive in but don’t technically “enter” the UK.”

These offences are summary or indictable offences. They can be committed by simple arrival, rather than entry to the UK; the latter having a technical legal definition set out in section 11 of the Immigration Act 1971. The maximum sentence for these offences has now increased to four years imprisonment. The offences are now triable in a crown court as well as a magistrates’ court. The relevant Crown Prosecution Service guidance also explains that because it is now possible to indict someone with a section 24 offence, it is also an offence to attempt to commit the offence.

People who cross the Channel in small boats are more likely to be caught by the section 24 offence. People who arrive and disembark without being intercepted are potentially liable to prosecution for illegal entry. Those who are intercepted or escorted to a port may be liable to prosecution for actual or attempted arrival without entry clearance.

There are likely to be arguments about whether elements of the offence are set out for people who are intercepted. Section 24 will need to be interpreted consistently with the Refugee Convention and, arguably, asylum seekers should not require entry clearance in order to travel to the UK to claim asylum. There are also arguments to be made about whether people rescued at sea can be said to have “knowingly” arrived.

The section 25 offence of assisting unlawful immigration is subject to a maximum sentence of life imprisonment, where the offence has been committed after 28 June 2022.

There are defences in section 31 of the Immigration and Asylum Act 1999, which are based on Article 31(1) of the Refugee Convention. They allow an individual to present himself to the authorities without delay and make an asylum claim as soon as possible, where they have shown good cause for their illegal entry or presence in the country. Whilst this is not available for section 24 or 25 offences, as is acknowledged in the Explanatory Notes, the CPS is obliged to decide whether prosecution is in the public interest. If the person is a refugee or victim of trafficking or modern slavery, there will likely be compelling public interest reasons against prosecution.

During passage of the legislation, the minister responsible, Tom Pursglove, suggested that the intention was not to prosecute every single asylum seeker:

We will be targeting for prosecution those migrants in cases where there are aggravating factors—where they caused danger to themselves or others, including rescuers; where they caused severe disruption to services such as shipping routes, or the closure of the channel tunnel; or where they are criminals who have previously been deported from the UK or persons who have been repeatedly removed as failed asylum seekers.

Tom Pursglove, Hansard, 28 October 2021, HC Deb, Col 420

However, it has been reported that the new Home Secretary wants to see more use of these powers, apparently including collaboration with the Justice Secretary to set up temporary courts to “handle thousands of prosecutions”. Whether prosecutors can withstand this political pressure remains to be seen.

It appears that the source of the recent confusion over whether people crossing the Channel are doing anything illegal may be the Home Office guidance on irregular or unlawful entry and arrival in the UK which was updated on 8 July 2022. This guidance clarifies that people who are intercepted at sea and are brought or escorted to a port, are considered to be arriving passengers and not illegal entrants. But it does not consider the new offences and other changes made by the Nationality and Borders Act 2022, and addressed in separate guidance, published on 28 June 2022, deals with potential criminality.

To answer the question posed at the outset of this post, the position is still not entirely clear. People crossing the Channel after 28 June 2022 are more likely to be breaking the law than was previously the case. If they are convicted, they could face severe penalties. However, the extent to which prosecutors decide the elements of the section 24 and 25 offences are met, and whether that it is in the public interest to pursue criminal prosecutions, remains to be seen.