Preliminary ruling on prosecuting small boat arrivals

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Those following the law around the prosecution of arrival in small boats may be interested in the ruling from the preparatory hearing in R v Mohamed and others. The purpose of the hearing was to provide a clear ruling on points of law that are likely to arise time again in prosecutions under sections 24(D1) and 25 of the Immigration Act 1971. The full ruling can be read here.

The ruling is not necessarily final, as the decision is subject to a potential appeal. The decision also leaves open a potential ex parte Adimi defence based on it being an abuse of process to prosecute a refugee.

Mr Justice Cavanagh concluded:

“(1) Arrival without leave in breach of section 24(D1) of the Immigration Act 1971 amounts to a breach of immigration law for the purposes of the facilitation offence in section 25. This means that the relevant amendments that were introduced by section 40 of [Nationality and Boarders Act] 2022 have achieved the objective for which they were designed, and that is set out at paragraph 406 of the Explanatory Notes to NABA 2022: there can be prosecutions under section 25(1) for facilitation of section 24(D1) unlawful arrival offence, or for facilitation of attempted unlawful arrival.

(2) It is not necessary, in order for there to be an offence under section 25(1) of the [Immigration Act] 1971 of facilitating unlawful arrival contrary to section 24(D1), that the Defendant knew or had reasonable cause to believe that the migrant whose arrival was facilitated was an egregious case (in some way) or was not a genuine or presumptive refugee. In other words, the Prosecution does not have to prove an additional mental element, over and above those set out expressly in sections 25(1)(b) and (c).

(3) As for “arrival” and “attempted arrival”:

(a) “arrival” for the purposes of sections 24(D1) means arrival on land in the United Kingdom, whether in the approved area of a port or elsewhere;

(b) A Defendant “arrives” in the United Kingdom if he or she is rescued at sea and is transported to land by the maritime authorities or other rescuers;

(c) it is not necessary to withdraw a section 24(D1) case from the jury if the [boat] from which the Defendant was taken did not have sufficient fuel to make landfall, and the Defendant’s sole intention was to remain afloat with a view to being rescued: it is still plainly open to the jury to draw the inference that the Defendant was attempting to arrive in the United Kingdom, albeit by means of being rescued in territorial waters by a vessel operated by the United Kingdom maritime authorities, and then by being conveyed by that vessel to landfall in the United Kingdom;

(d) it is not the case that if the attempted arrival began in France, the United Kingdom has no jurisdiction. In such cases, it is plainly open to the jury to conclude that the attempt continued until such time as the Defendant was in the United Kingdom territorial waters; and

(e) for the avoidance of doubt, I have not been asked to rule whether there is jurisdiction for the United Kingdom criminal courts to deal with attempts or substantive offences under section 24(D1) or section 25 of the [Immigration Act] 1971, if they took place in international waters.

(4) Sections 30(3) and 37 of [Nationality and Boarders Act] 2022 do not provide a defence to a person charged with an offence contrary to section 24(D1) of the [Immigration Act] 1971. In particular, sections 30(3) and 37 do not provide a defence based on Article 31 of the Refugee Convention for offences (such as the offence under section 24(D1)) which are not specifically provided with such a defence by section 31 of the Immigration and Nationality Act 1999.

(5) Section 24(D1) applies to a person who is seeking asylum on arrival in the United Kingdom. The fact that the person is seeking asylum may have an effect on the prosecutorial decision as to whether it is in the public interest to prosecute, but that is a different matter.