Fouad Kakaei is an Iranian man who helped steer small boats carrying asylum seekers across the English Channel on two separate occasions, in July and December 2019. He also attempted to cross on several other occasions. Following the July 2019 crossing, he did not claim asylum here in the UK and was returned to Denmark, where a previous claim for asylum had already been refused. He did claim asylum in the UK after the December crossing but was charged with illegal entry under section 24 of the Immigration Act 1971, pleaded guilty and was sentenced to four months’ imprisonment. He also faced trial for the separate crime of assisting unlawful immigration, an offence under section 25 of the 1971 Act attracting a maximum sentence of 14 years. Following a legal ruling at his trial, he pleaded guilty to this offence as well and was sentenced to 26 months’ imprisonment.

A few weeks ago, his conviction for the section 25 assisting unlawful immigration offence was overturned by the Court of Appeal. Its complex judgment was only published today: R v Kakaei [2021] EWCA Crim 503. In the intervening period, Mr Kakaei was retried and was acquitted by a jury yesterday. The outcome appears to be a major blow to the current Home Office strategy of prosecuting “hand on the tiller” cases using what are essentially human smuggling offences.

There were, I think, two ways that a defence might have been constructed for Mr Kakaei.

One is the very hard way, which is to rely on the terms of the Refugee Convention and argue that a prosecution should never have been brought because it constituted an abuse of process. As we’ll see, there are a number of problems with this approach. Then there was the merely hard way, which was to rely on the provisions of domestic law and show that they led to the same result. Mr Kakaei’s legal team, led by Aneurin Brewer, succeeded on this latter argument.

The Refugee Convention

The prosecution of refugees for crossing borders is controversial. Self evidently, refugees have to cross borders without prior permission. A refugee whose life is threatened rarely has time to apply for a passport, apply for a visa and travel via an international airport. There is no such thing as an asylum visa anyway. A minuscule fraction of refugees in refugee camps are selected for resettlement and many refugees from repressive countries (including Iran) have no obvious adjacent camps to go to.

Based on the experiences of refugees before the Second World War, the drafters of the Refugee Convention recognised this reality and included at Article 31 a “non penalisation” clause. This obliges countries that are signatories to the Convention not to

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 authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

We have written about Article 31 before, both in the context of prosecutions for illegal entry and the legally incorrect assertion that refugees must claim asylum in the first safe country they reach. The issue Mr Kakaei’s case raised was different: can or should a refugee be penalised simply for helping to steer fellow refugees to safety? 

The United Kingdom is, sadly, not the only country seeking to penalise refugees for assisting other refugees. Canada introduced laws criminalising such behaviour. But in 2015 those laws were struck down by the Canadian Supreme Court in twin judgments B010 v. Canada (Citizenship and Immigration) [2015] SCC 58 and R. v. Appulonappa [2015] SCC 59.

In the first of the Canadian cases, Chief Justice McLachlin held that

The law recognizes the reality that refugees often flee in groups and work together to enter a country illegally. Article 31(1) thus does not permit a state to deny refugee protection (or refugee determination procedures) to refugees solely because they have aided others to enter illegally in an unremunerated, collective flight to safety. Rather, it targets those who assist in obtaining illegal entry for financial or other material benefit.

She reiterated the point in the second judgment:

As I explain in B010, art. 31(1) of the Refugee Convention seeks to provide immunity for genuine refugees who enter illegally in order to seek refuge. For that protection to be effective, the law must recognize that persons often seek refuge in groups and work together to enter a country illegally. To comply with art. 31(1), a state cannot impose a criminal sanction on refugees solely because they have aided others to enter illegally in their collective flight to safety.

There is therefore a strong argument that Article 31 of the Refugee Convention protects refugees collectively seeking sanctuary. These judgments are relevant here in the United Kingdom because when it comes to the interpretation of an international instrument, our courts will always have regard to judgments in other countries and the opinions of well-respected international law academics. It is considered undesirable that an international instrument be interpreted differently in different countries. International authorities are not binding but they are highly persuasive, particularly if from a supreme court.

BUT… the Refugee Convention is not properly incorporated into UK law so a refugee cannot just rely on it in defence to a prosecution under UK law.

United Kingdom legislation

Illegal entry

Mr Kakaei pleaded guilty to illegal entry, an offence under section 24 of the Immigration Act 1971. In the United Kingdom, a defence was introduced in the form of section 31 of the Immigration and Asylum Act 1999 to some illegal entry offences for refugees who have:

• come to the United Kingdom directly from a country where their life or freedom was threatened within the meaning of the Refugee Convention
• presented themselves to the authorities in the United Kingdom without delay
• showed good cause for their illegal entry or presence; and
• made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom

Many offences were omitted, however, including section 24 itself.

Section 24 makes it an offence if a person:

knowingly enters the United Kingdom in breach of a deportation order or without leave [emphasis added].

This does not necessarily mean that a refugee arriving in the UK will necessarily have committed an offence. Because section 11(1) of the Immigration Act 1971 provides:

A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained…

This creates a legal fiction: the idea that a person who has physically arrived in a designated area of a port or airport has not “entered” the UK for certain purposes. They therefore cannot yet have committed the criminal offence of illegal entry.

Assisting unlawful immigration

Section 25 of the 1971 Act criminalises assisting unlawful immigration. (This section has been amended following Brexit but the changes have not yet been applied to the government’s own legislation website.) At the time Mr Kakaei was charged, the offence consisted of

an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a citizen of the European Union.

The person must also know or have reasonable cause to know the offence is being committed.

The question of whether the asylum seekers “assisted” by Mr Kakaei themselves breached immigration law — and if so, how — was to be crucial.

A more broadly drawn criminal offence of assisting unlawful immigration for profit exists at section 25A of the 1999 Act, which applies where a person

knowingly and for gain facilitates the arrival or attempted arrival in, or the entry or attempted entry into, the United Kingdom of an individual [emphasis added].

As highlighted in bold, this applies to mere “arrival” or “attempted arrival”, not just the legal fiction of “entry”. But Mr Kakaei was not charged with that offence because there is no suggestion he profited from his actions.

United Kingdom case law

The first and foundational case regarding the Refugee Convention route to a defence is ex parte Adimi [1999] EWHC Admin 765. This case led to the introduction of section 31 of the 1999 Act and was approved and developed by the House of Lords in the later case of R v Asfaw [2008] UKHL 31. Asfaw plugged at least some of the gaps left by section 31 by deciding that a prosecution which contravened Article 31 of the Refugee Convention would be an abuse of process and charges could be dismissed on this basis. The context in Asfaw was use of a false passport and charges directly relating to that fact brought under the Forgery and Counterfeiting Act 1981 and Criminal Attempts Act 1981. Could Asfaw also be used to argue that a prosecution under section 25 was an abuse of process?

In several previous reported cases, the prosecution has brought charges under section 25 (assisting unlawful immigration) rather than section 25A (assisting an asylum seeker for gain) even where the facts of the case seemed a better fit for the latter offence. This has been approved by the courts on a number of occasions.

In one such case, Sternaj v Director of Public Prosecutions [2011] EWHC 1094 (Admin), Lord Justice Laws held that neither Article 31 of the Refugee Convention nor Asfaw provided any defence to a prosecution under section 25, at least on the facts of that case. In Sternaj the defendants had travelled abroad from the United Kingdom to personally arrange travel to the UK of relatives and, in the event, to personally bring one of those relatives back to the UK. The assisting person was not a refugee, or at least not one in flight from persecution.

Neither Asfaw nor Sternaj involved facts resembling a “hand on the tiller” mutual aid case in a small boat already at sea.

Immigration in question must be unlawful

This brings us back to the facts of Kakaei. For someone to be guilty of assisting unlawful immigration under section 25, there needs to be an identifiable immigration law which the assisted person has broken. In this case, the prosecution seems to have asserted that this breach was by the other asylum seekers on the small boat which Mr Kakaei helped to steer, and the relevant broken law was section 24. Mr Kakaei himself had already pleaded guilty to a breach of immigration law under section 24, and thus it seemed arguable that the other asylum seekers might also have breached the same law.

But as we have seen, section 11 of the Immigration Act 1971 means that an asylum seeker does not knowingly enter (for immigration law purposes) the UK without leave if he or she applies for asylum at port. Edis LJ at paragraph 51 of the judgment says:

The question was whether there was any material before the court to show that the passengers on these journeys would have committed an offence under section 24 if they had carried out the plan which the appellant had facilitated by piloting the boats. It was later agreed in the basis of plea that they planned to disembark and surrender to the UK Border authorities and claim asylum immediately. Whether that constituted an offence under section 24 would depend on where they arrived in the UK. If it was at a port with an approved area, then they would not commit the offence.

Similarly, being picked up at sea and brought to a port would also not breach section 24.

Mr Kakaei therefore had a defence: it is not a breach of UK immigration law for asylum seekers to claim asylum at port on arrival and therefore he had not necessarily assisted unlawful immigration. Given that he was acquitted yesterday, it looks like this defence was accepted by the jury.

The outcome also appears, on the face of it, to cast doubt upon the soundness of Mr Kakaei’s own conviction under section 24.

I confess to finding myself quite pleasantly surprised. I am accustomed to UK immigration laws bringing about perverse and unforeseen outcomes. The facts of Mr Kakaei’s case make me wonder if the criminal offences at section 24, 25 and 25A are actually quite well drawn and broadly compliant with the Refugee Convention. And this perhaps explains the mystery (to me at any rate) of why section 24 was never included in the section 31 defence: because it was not needed in most cases.

Free Movement training course: Immigration offences and civil penalties.