Though now largely eclipsed by the Unlawful Migration Act 2023, the Nationality and Borders Act 2022’s legacy can be its criminalisation of the act of in search of asylum within the UK. This text goals to provide an summary of the adjustments to the regulation.
Entry vs arrival
By the use of background, virtually all asylum seekers arriving within the UK by small boat are both intercepted within the Channel or met by Border Drive on arrival. Beneath the earlier provisions individuals who claimed asylum on arrival had not technically entered the nation but, and so couldn’t be prosecuted for breaching immigration legal guidelines or illegal entry.
The phrase ‘arrival’ has a selected that means in UK immigration regulation; there’s a authorized distinction between arriving in a rustic and truly getting into it. Arrival occurs when an individual’s aircraft touches down in a rustic or they arrive at a delegated port with an “approved area”. Entry solely takes place if somebody passes immigration management, leaves an permitted space or lands on a seashore with out an permitted space. See section 11(1) of the 1971 Act.
The arrival/entry distinction additionally protected individuals who helped steer the boats throughout the Channel. Border Drive makes use of digital surveillance to establish people who’ve performed an element in steering the boat and earlier than the 2022 Act the authorities tried to prosecute these individuals for assisting unlawful immigration.
Within the instances of R v Kakaei [2021] EWCA Crim 503 and R v Bani [2021] EWCA Crim 1958 the Court of Appeal quashed the convictions of 5 defendants who had performed a job in steering a dinghy to shore, because the defendants had not truly assisted anybody enter the nation. The prosecution wanted to point out that illegal entry was truly on the playing cards.
It’s this distinction that the 2022 Act provisions sought to focus on. Sections 40 and 41 of the 2022 Act have been launched expressly to take away the excellence drawn in Kakaei and Bani. The House of Commons research briefing on the Bill printed in July 2021 said the federal government considers that “people seeking to enter the country illegally, including those who have crossed the Channel by small boat, are not appropriately penalised for breaking the law”.
These new provisions have been contested within the Court docket of Attraction in R v Mohamed[2023] EWCA Crim 211 which sadly confirmed that prosecuting asylum seekers for arriving within the UK are permitted underneath the 2022 Act. The Court docket of Attraction denied permission to attraction to the Supreme Court docket, rejecting the argument that the case was one in every of wider public significance.
What are the offences within the 2022 Act?
The 2022 Act expanded the scope of offences that already existed within the Immigration Act 1971. Most vital are the offences underneath section 24 and 25 of 1971 Act.
The important thing takeaway right here is that the act of merely arriving within the UK, even to assert asylum, is now an offence. Beneath part 24(D1) of the 1971 Act it’s now an offence to reach or try to arrive within the UK with out legitimate entry clearance; the particular person not must enter the nation to commit the offence.
Equally, underneath part 25(1) of the 1971 Act it’s now an offence to facilitate the arrival or tried arrival within the UK. The Nationality and Borders Act 2022 eliminated the ‘for gain’ requirement in part 25, extending what is basically a folks smuggling offence to anybody in a dinghy who places their hand on the tiller.
Illegal arrival prosecutions
The current Court docket of Attraction judgment of R v Ginar [2023] EWCA Crim 1121 held that part 24(D1) instances will typically cross the custody threshold and that, earlier than particular person circumstances are taken under consideration, the suitable sentence for the offence is a 12 months in jail. Earlier than the 2022 Act got here into drive the utmost sentence for a piece 24 offence was six months’ custody; now it’s 4 years.
The courtroom in Ginar pressured that many instances can have “powerful features of personal mitigation”. An debatable case for refugee standing can be a related consideration. Beware that making an asylum declare with out advantage can truly help the case for prosecution.
Folks with a historical past of entry offences, or who arrive in breach of deportation or exclusion orders, usually tend to be prosecuted. Different aggravating components are utilizing violence or making monetary achieve in committing the offence, in addition to destroying paperwork.
Aiding illegal immigration prosecutions
Sentences for aiding illegal immigration underneath part 25 have been elevated underneath the 2022 Act to a most sentence of life imprisonment. The Crown Prosecution Service gives guidance stating that people who find themselves discovered to have deliberate or organised the crossing, or present that they did so with the “intention or expectation that they will be intercepted”, will face extra critical sentences, as will anybody proven to have triggered disruption to commerce routes. Lesser sentences can be given the place an individual assisted to safeguard different passengers.
Anybody who’s recognized as having their hand on the tiller throughout a crossing could also be prosecuted underneath part 24 and part 25. In lots of instances, the prosecution doesn’t have sufficient proof to safe a piece 25 conviction however will however declare they’ve imprisoned the boat driver if the particular person however pleads responsible to part 24.
Observations from sentencing hearings for supposed small boat pilots who plead responsible to part 24 after being recognized as a driver have revealed that they have a tendency to obtain decrease sentences than these with a earlier immigration historical past.
Prosecution and public curiosity issues
In fact, not everybody who falls within the remit of the offences can be charged. The judicial system would battle to course of the instances of the 44,460 individuals who arrived in small boats over the 12 months following the approaching into drive of the 2022 Act, and lots of of them are additionally youngsters. Explanatory Notes to the 2022 Act state that the offence have to be “serious enough” to warrant legal proceedings.
The CPS has a discretion as as to whether it decides to cost a suspect and have to be glad that bringing a prosecution is within the public curiosity. It’s tough to see how the CPS might justify the prosecution of an unaccompanied asylum in search of little one for arriving within the UK illegally. Nonetheless, problematic age assessment practices in Dover have resulted in a number of age disputed children being held in custody in adult prisons.
One of many CPS’s public curiosity issues is article 31 of the Refugee Convention. Article 31 is a ‘non-penalisation clause’ prohibiting signatories from penalising refugees who enter a rustic with out permission. Article 31 has solely been partly integrated into home regulation as a defence in opposition to immigration offences underneath section 31 of the Immigration and Asylum Act 1999.
Home Office guidance on section 31 states that the defence is just accessible underneath particular offences (set out at part 31(3) of the 1999 Act), and in any case the defendant will need to have claimed asylum as quickly as practicable. Different statutory defences accessible to asylum seekers are set out within the steerage, such because the Trendy Slavery defence.
Importantly, the steerage states that in all instances the CPS is wholly reliant on the Dwelling Workplace for proof {that a} defence applies. Immigration and legal practitioners ought to due to this fact take this to imply that it’s all the way down to them – not the Dwelling Workplace – to make sure the CPS has the right proof earlier than it.
Due to this somewhat slim remit, the CPS states they are going to take article 31 under consideration earlier than deciding to prosecute. One would assume this implies it’s much less seemingly that the CPS will prosecute an individual who’s a real refugee, who claimed asylum immediately, had good trigger to enter the nation with out permission, and dedicated offences that have been essential to flee persecution.
Nonetheless, Freedom of Information requests have revealed that high 5 nationalities prosecuted underneath part 24 embody Afghan and Sudanese asylum seekers who’ve 99% and 95% grant rates on initial asylum claims.
Conclusion
Initial commentary on the Bill earlier than it grew to become the 2022 Act already highlighted this provision as a violation of the non-penalisation clause. Because the Refugee Conference stays an instrument of worldwide regulation and never immediately justiciable in UK courts it stays to be seen how this lack of compliance may be successfully challenged.
This briefing was written collectively by Larry Lock and Francesca Parkes. Francesca coordinates a gaggle of immigration, legal and public regulation practitioners who meet to debate evolutions of this criminalisation apply and strategise potential challenges. To affix the group please contact Francesca on coordinator.france@refugeelegalsupport.org.
