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Court of Appeal dismisses appeal against criminalising small boat arrivals

On 1 February 2023 Mr Justice Cavanagh made a ruling, following a preparatory hearing on 14 and 15 December 2022, that asylum seekers can be prosecuted for arriving in the UK without valid entry clearance and for assisting unlawful immigration, contrary to sections 24(D1) and 25(1) of the Immigration Act 1971 respectively. On 2 March 2023, the Court of appeal dismissed an appeal of this decision made by the four Sudanese men being prosecuted. The case is Rex v Ashari Mohamed & others [2023] EWCA Crim 211.

Following the clarification in R v Kakaei [2021] EWCA Crim 503 that migrants who seek to arrive in the UK to claim asylum commit no offence contrary to section 24, the Nationality and Borders Act sought to criminalize migrants crossing the Channel on small boats and seeking asylum in the UK.

This appeal is the first of its kind to reach the Court of Appeal since the Nationality and Borders Act 2022 came into force on 28 June 2022. The Act amended section 24(D)1 and section 25(1) of the Immigration Act 1971, creating new offences of illegal arrival to the UK without valid entry clearance and of facilitating such an arrival. You can read more about these amendments here.

The four Sudanese men were challenging prosecutions brought pursuant to sections 24 and 25 of the 1971 Immigration Act on three principal bases. First, they submitted (“Issue 1” of the ruling, paragraph 69ff) that the section 24(D1) offence is not an immigration law as defined by section 25(2) and as such cannot be the subject of a charge of facilitating a breach of immigration law. This is because section 24(D1) does not control an “entitlement to arrive in the UK” but, rather, they submitted, creates a criminal offence.

The Court of Appeal dismissed this submission, concluding at paragraph 78 that a criminal offence of arrival without valid entry clearance controls migrants’ entitlement to arrive in the UK because “a person is not entitled to do something which is illegal by virtue of being a criminal offence”.

Second, they submitted (“Issues 4 & 5” of the ruling, paragraph 63ff and 46ff respectively) that section 24(D1) should not apply to asylum seekers, and that the very fact they were asylum seekers should be a defence to such a charge.

The Court found against this submission ruling:

 “The clear combined effect of rule 24 read with rule 6.2 [of the Immigration Rules] is that visa nationals, such as a citizen of Sudan, require entry clearance before arrival in the UK for any purpose. That is so irrespective of whether they have an intention to claim asylum on arrival.”

The Court ruled that neither section 30 and 37 of the Nationality and Borders Act nor section 31 of the Immigration and Asylum Act 1999 created a defence to these offences.

Third, the appellants submitted (“Issue 2” of the ruling, paragraph 80ff) that section 25 required the alleged facilitator to know or have reasonable cause to believe that the migrant who was assisted “was an egregious case or not a genuine or presumptive refugee”.

The Court ruled that the criminal mental intention of the section 25 offence is clearly set out at subsections 25(1)(b) and (c). It does not contain the need to show that the facilitator knew or had reasonable cause to believe that the migrant was not genuine:

“(1) A person commits an offence if he-

(b) knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual, and

(c) knows or has reasonable cause for believing that the individual is not a national of the United Kingdom.”

The fact that the Crown Prosecution Service might exercise its discretion not to prosecute migrants whose arrival was facilitated based on public interest grounds was not relevant to whether the section 25 offence was established.

As a result, the court upheld the ruling of Mr Justice Cavanagh that asylum seekers can be prosecuted for arriving in the UK without valid entry clearance and that individuals can be prosecuted for helping to facilitate unlawful immigration. It is likely this judgement will open the door to regular prosecutions of passengers and pilots of small boat crossings of the Channel which have become such a cause of concern for the current Government.

This piece has been written jointly by Aneurin Brewer and David L Suber. David is a PhD candidate working on human smuggling and border policing at the Jill Dando Institute of Crime Science.

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Aneurin Brewer

Aneurin Brewer

Aneurin Brewer is a criminal defence barrister at Red Lion Chambers.