On 1 February 2023, the Court of Appeal heard an appeal against a preliminary ruling that asylum seekers can be prosecuted for arriving in the UK without a valid entry clearance. The case is R v. Mohamed and others. The appeal was brought on behalf of four Sudanese defendants who are being prosecuted for offences contrary to sections 24(D1) and 25(1) of the 1971 Immigration Act, arriving without leave to enter and assisting unlawful immigration.

This legal challenge is the first of its kind against the enforcement of these statutory provisions as amended by the 2022 Nationality and Borders Act, which came into effect on 28 June 2022, seeking to criminalize migrants crossing the Channel to the UK to seek asylum.

Background

The government amended sections 24 and 25 of the 1971 Immigration Act by introducing section 40 of the 2022 Nationality and Borders Act as a response to two judgments made by the Court of Appeal in 2021: R v Kakaei [2021] EWCA Crim 503 and R v Bani [2021] EWCA Crim 1958. You can read more about these judgments here.  

These judgements quashed the convictions of a number of appellants who had helped to steer dinghies across the Channel and had been charged with facilitating the unlawful entry of the other migrants on board contrary to section 25 of the 1971 Act. The court ruled that a person was deemed not to have unlawfully entered the UK if they were intercepted or rescued at sea and then taken to an approved area within the port of Dover where they claimed asylum.

How did the law change after the 2022 Nationality and Borders Act?

In response to these rulings, the Nationality and Borders Act 2022 amended section 24 and 25 of the Immigration Act 1971. Section 24 was expanded to create the new offence of illegal arrival to the UK without valid entry clearance (section 24(D1)) alongside the existing offence of illegal entry (section 24(B1)). Section 25(1) reflected this change through the insertion of the words “or arrive in” in section 25(2).

The relevant parts of the amended sections 24 and 25 read as follows (emphasis added):

“24. Illegal entry and similar offences.

….
(B1) A person who requires leave to enter the United Kingdom under this Act, and knowingly enters the United Kingdom without such leave, commits an offence.
….
(D1) A person who requires entry clearance under the immigration rules, and
knowingly arrives in the United Kingdom without a valid entry clearance, commits an offence.

25. Assisting unlawful immigration to member State or the United Kingdom.

(1) A person commits an offence if he—

(a) does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not [a national of the United Kingdom,

(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.

(2) In subsection (1)“immigration law” means a law which has effect in a member State or the United Kingdom and which controls, in respect of some or all persons who are not nationals of the State or, as the case may be, of the United Kingdom , entitlement to enter or arrive in the State or the United Kingdom, transit across the State or the United Kingdom, or be in the State or the United Kingdom.”

Criminalizing arrival to the UK

The amendments to section 24 and 25 effectively create two new offences related to migrants crossing the Channel: arrival without valid entry clearance and the facilitation of such arrivals.

The Government’s expressed intention in making these amendment was to deter Channel crossings by criminalizing migrants who cross on small boats from the beaches in northern France and Belgium. Since the implementation of the Nationality and Borders Act, the Crown Prosecution Service have resumed prosecuting migrants who are intercepted in UK territorial waters.

Figures released by the Home Office show that between the enactment of the Nationality and Borders Act on 28 June 2022 and 22 November 2022, an estimated 29,400 migrants had arrived in the UK on small boats. Of these, only 96 (0.3 %) were arrested on suspicion of committing the new crime of illegal arrival under section 24(D1); 78 were later charged with the same offence; of which 56 have been so far convicted. The numbers for those arrested and charged for the emended section 25 offence are not know but are likely to be significantly smaller still.

The preparatory hearing

A preparatory hearing was held before Mr Justice Cavanagh at Canterbury Crown Court on 14 and 15 December 2022. The central issue was whether the amendments to sections 24 and 25 had been effective in bringing about the change in the law intended by government, and whether the prosecution of defendants in these circumstances were lawful.

The court ruled in favour of the prosecution, confirming that the amendments introduced by section 40 of the Nationality and Borders Act had achieved the objective of criminalizing cross channel crossings.

On the basis of this ruling, all asylum seekers can be prosecuted for crossing the Channel, but decisions on whether to prosecute are at the discretion of the Crown Prosecution Service, who will consider the public interest test case by case. The CPS Charging Guidelines single out “egregious cases” to be prioritized for prosecution. These are cases where there is substantive evidence of aggravating factors adding to a person’s unlawful arrival or facilitation.

What this has meant in practice is that if migrants piloting small boat are found to be doing so to safeguard other passengers (in cases where the boat is in distress, for example), or are not gaining any financial benefit for piloting the boat, they may be charged under section 24(D1) (unlawful entry) rather than for under section 25 (facilitation of unlawful entry), which has also seen maximum sentences increase to life imprisonment under the Nationality and Borders Act.

Grounds for appeal

The appellants are challenging Mr Justice Cavanagh’s decision on two principal bases.

The first is based on a pure point of statutory interpretation. They submit 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, creates a criminal offence.

The appellants’ second submission is that the prosecution of asylum seekers in these circumstances is inconsistent with the UK’s obligations under Article 31 of the 1951 Refugee Convention. According to the new rules, these apply to everyone who requires an entry clearance on arrival, including asylum seekers.

The appellants submit that there is simply no existing provision under the entry clearance rules that allows permission to enter the UK for the purpose of seeking asylum. Asylum can only be requested on arrival to the UK, and not from abroad.

Article 31 of the 1951 Refugee Convention requires that “the Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory
where their life or freedom was threatened (…), enter or are present in their territory without authorization”. The protection granted by Article 31 applies to those who are recognized as refugees as well as those who are seeking asylum and still haven’t been granted protection status. The appellants submit that as there is no legal route by which asylum seekers can seek entry clearance before arriving in the UK. Thus, section 24(D1) cannot be made compatible with the non-penalization principle of the Refugee Convention.

The Court of Appeal considered both arguments at the appeal hearing on 1 February 2023. The Court’s judgement is anticipated in a matter of weeks.

This piece has been written jointly by Aneurin Brewer and David L Suber. Aneurin Brewer is a criminal defence barrister at Red Lion Chambers.

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