The Court of Appeal in R v Ginar [2023] EWCA Crim 1121 has given guidance on the appropriate criminal sentences for those convicted for the offence of arriving (or attempting to arrive) in the UK without entry clearance, contrary to section 24(D1) of the Immigration Act 1971. The offence was introduced by the government in the Nationality and Borders Act 2022 with the explicit intention of targeting small boats crossing the Channel.

The court said that the custody threshold will ‘generally be crossed’ for people arriving in the UK by small boats, placing migrants and refugees at risk of prison sentences for making the dangerous journey across the Channel. The court has confirmed that the starting sentence for the offence should be 12 months’ imprisonment.

The custody threshold comes from section 230 of the Sentencing Act 2020, which states that a court must not pass a custodial sentence “unless it is of the opinion that the offence […] was so serious that a fine alone nor a community sentence can be justified”.

Background

Mr Ginar, a Turkish national, had pleaded guilty to the section 24(D1) offence and was sentenced to 12 months’ imprisonment in August 2023, reduced to eight months after credit for a guilty plea.

He applied for permission from the Court of Appeal’s criminal division to appeal his sentence on the ground that irrelevant information (his immigration history) had been treated as an aggravating factor by the sentencing judge. Mr Ginar had previously been through the asylum process in 2005. He had travelled to the UK in 2023 with the hope of claiming asylum again given the deteriorating political situation in Turkey and the destruction caused by the earthquake earlier that year.

Mr Ginar’s second ground of appeal was that his sentence of 12 months reduced to eight was manifestly excessive. While the offence itself carries a maximum sentence of four years’ imprisonment, he argued that if the sentencing judge had ignored his immigration history, his case did not have significant aggravating features. 

Immigration history an ‘aggravating factor’

Regarding immigration history as an aggravating factor the court said that:

The offence will be aggravated by relevant previous convictions, by a high level of planning going beyond that which is inherent in the attempt to arrive in the United Kingdom from another country, and by a history of unsuccessful applications for leave to enter or remain or for asylum. Even if the previous attempts did not involve any criminal offence, the history of previous failure makes it more serious that the offender has now resorted to an attempt to arrive without valid entry clearance. The weight to be given to that factor will of course depend on the circumstances of the case.

The court did go on to consider the “powerful features of personal mitigation” small boats cases will have, such as “arguable grounds” for claiming asylum. This suggests that a well articulated asylum claim could go some way to lessening the sentences in cases like this and so some level of coordination between criminal and immigration lawyers to ensure that any asylum claim is adequately articulated during criminal proceedings could prove useful.

Unfortunately the court concluded that Mr Ginar’s “repeated efforts” to enter the UK “made it significantly more serious that [Mr Ginar] again attempted to arrive in the UK on this occasion.”

A year in prison ‘not excessive’

In dealing with the question of whether Mr Ginar’s sentence was excessive, the court noted the lack of sentencing guidelines available for this relatively new offence and went on to explore the relevant factors of culpability and harm.

Rightly the court observed that lengthy sentences will do no good deterring people from crossing the Channel. However, they went on to consider a wide-ranging (and expedient) list of factors that go to culpability and harm:

There is legitimate public concern about breaches or attempted breaches of border control, and this type of offence, which is prevalent, will usually result in significant profit to organised criminals engaged in people smuggling. A key feature of culpability inherent in the offence, save in very exceptional circumstances, is that the offender will know that he is trying to arrive in the UK in an unlawful manner: if it were otherwise, he would take the cheaper and safer alternative route which would be available to him. The harm inherent in this type of offence is not simply the undermining of border control but also, and importantly, the risk of death or serious injury to the offender himself and to others involved in the attempted arrival, the risk and cost to those who intercept or rescue them, and the potential for disruption of legitimate travel in a busy shipping lane.

The reference to cheaper and safer alternative routes being available is somewhat misguided, given these simply do not exist for the vast majority of people.

Conclusion

It is disheartening that the court concluded that ordinary cases with no aggravating factors will generally cross the custody threshold. With no other route to claim asylum in the UK, and tacit acceptance that these prosecutions will do little to deter people from making the journey, this seems like an ill-considered conclusion to reach.

Custody should be a last resort for the most serious offences, and the court will be well aware that UK prisons are at bursting point. Hopefully immigration and criminal practitioners can strategise to ensure the mitigating factors in each case, including any asylum claim, are front and centre for these cases.

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