Appeal Making Small Boat Arrivals Illegal Is Rejected

Following a preliminary hearing on December 14 and 15, 2022, Mr. Justice Cavanagh issued a decision on February 1 2023 declaring that asylum seekers can be prosecuted for entering the UK without a valid entry visa and for facilitating illegal immigration, in violation of sections 24(D1) and 25(1) of the Immigration Act of 1971, respectively. The four Sudanese men who were being prosecuted filed an appeal of this decision, which the Court of Appeal dismissed on March 2, 2023. Rex v. Ashari Mohamed & Others [2023] EWCA Crim 211 is the case.

After it was determined in R v. Kakaei [2021] EWCA Crim 503 that people who attempt to enter the UK in order to seek asylum do not violate Section 24 of the Immigration Act, the Nationality and Borders Act sought to make it illegal for people to cross the English Channel in small boats in order to enter the UK in order to seek asylum.

Since the 28 June 2022 effective date of the Nationality and Borders Act 2022, this appeal is the first of its kind to reach the Court of Appeal. The Immigration Act of 1971 was modified by the Act, which added additional offences for aiding an illegal immigration into the UK and for violating sections 24(D)1 and 25(1).

On three main grounds, the four Sudanese males contested proceedings brought in accordance with sections 24 and 25 of the 1971 Immigration Act. Secondly, they argued that the section 24(D1) offence is not an immigration law as defined by section 25(2) and as a result cannot be the subject of a charge of aiding a breach of immigration law (“Issue 1” of the judgement, paragraph 69ff). This is so because, according to their submission, section 24(D1) does not regulate a “entitlement to enter in the UK” but rather constitutes a crime.

The Court of Appeal dismissed this submission, stating at paragraph 78 that a criminal offence of arrival without valid entry clearance limits migrants’ eligibility 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 argued that section 24(D1) should not apply to asylum seekers and that the sheer fact that they were seeking asylum should be a defence to such a charge (“Issues 4 & 5″ of the judgement, paragraph 63ff and 46ff, respectively”).

The Court rejected this submitted decision:

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

Third, the appellants claimed that section 25 required the putative facilitator to know or have good grounds to think that the immigrant who was facilitated “was an egregious case or not a genuine or presumptive refugee” (“Issue 2” of the judgement, paragraph 80ff).

The Court concluded that subsections 25(1)(b) and 25(2) clearly define the criminal mental intention of the section 25 offence (c). It excludes the requirement to demonstrate that the facilitator knew or had good grounds to suspect 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.

It was irrelevant whether the section 25 offence was proven that the Crown Prosecution Service can decide not to prosecute migrants whose arrival was assisted due to public interest reasons.

The court maintained Mr. Justice Cavanagh’s decision that asylum seekers can be charged with entering the UK without a valid entrance visa and that anyone can be charged with aiding in illegal immigration. This ruling is likely to pave the way for frequent prosecutions of boat drivers and passengers making the Channel crossings that have become such a source of worry for the current administration.

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Written by:

Tahir Shahab Khan

Managing Director

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