Court of Appeal finds Channel boat crossings by asylum seekers not illegal as convictions quashed

Judges say Home Office and prosecutors misunderstood law and ‘legal heresy’ developed

Asylum seekers who are intercepted while crossing the English Channel in small boats have not broken the law, the Court of Appeal has found.

Judges quashed the convictions of three men who were wrongly jailed for “assisting unlawful immigration” for steering dinghies, after finding they had not committed the offence.

A fourth man who appealed against his conviction will face a retrial, and at least seven other convictions and two pending trials are under consideration.

A ruling delivered on Tuesday said the law had been “misunderstood” by the Home Office and Crown Prosecution Service (CPS), and that a legal “heresy” developed making asylum seekers believe they had no defence to the charge.

Lord Justice Edis, Mrs Justice May and Sir Nicholas Blake said that asylum seekers who are intercepted by authorities in the Channel, or who are taken into immigration detention after reaching a port, have not illegally entered the UK.

“As the law presently stands, an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom in order to make a claim is not entering or attempting to enter the country unlawfully,” the judgment added.

“Even though an asylum seeker has no valid passport or identity document, or prior permission to enter the United Kingdom, this does not make his arrival at the port a breach of an immigration law.”

The ruling said that “a heresy about the law had been adopted by those who were investigating these cases [Border Force], and passed on to those whoprosecuted them, and then further passed on to those who were defending them and finally affected the way the judges at the Canterbury Crown Court approached these prosecutions.”

The case raises significant questions for the Home Office, which labelled the men and others convicted of the offence “people smugglers” and has declared small boat crossings illegal.

The judgment said the “true requirements of the law … was not alive in the minds of the Border Force officers” dealing with the cases, and that erroneous “notices of liability to detention” were being given to asylum seekers arriving by boat.

They stated that recipients may be deported, adding: “You are specifically considered an illegal entrant to the UK as you were encountered in a private vehicle namely a RHIB which had recently arrived in the UK from France. You could not produce any travel document or provide any evidence of your lawful basis to be in the UK and have therefore entered the UK in breach of the Immigration Act 1971.”

Judges noted that the government is attempting to change the law to mean that asylum seekers can be prosecuted for “arrival”, rather than “entry”, to Britain but said they were dealing with the current law.

The Nationality and Borders Bill would also increase the maximum sentence for the offence of assisting unlawful immigration to life, as well as raising the penalty for illegal entry from six months’ imprisonment to four years.

A government document said the new law “will allow prosecutions of individuals who are intercepted in UK territorial seas and brought into the UK”.

The court heard that the appellants had been charged with facilitating unlawful entry to the UK after being filmed steering the dinghies they travelled in, but could not have committed the offence because they did not technically enter the country.

One of the men called 999 himself at sea, while another tried to flag a Border Force vessel down, and all said their sole intention crossing the Channel was to seek asylum.

“We invited the Crown Prosecution Service to help us on how it came about that the law was misunderstood when investigating, charging and prosecuting these cases,” the judgment said.

“It appears that when drone technology enabled interception of the small boats at sea more regularly, and the number of small boats also greatly increased, criminal investigations and subsequent prosecutions were launched … without any careful analysis of the law and appropriate guidance to those conducting interviews, taking charging decisions, and presenting cases to courts.”

The judges found that the law being used, the Immigration Act 1971, “was not drafted with the current emergency [of small boat crossings] in mind”, and that a “flawed view” of its meaning had developed in the courts dealing with the cases.

The court heard that three of the appellants had unsuccessfully tried to fight against their prosecutions, and that a fourth man only pleaded guilty because the legal advice given was wrong.

Samyar Bani denied assisting unlawful immigration and told police: “I am a genuine asylum seeker and I do not accept that I have committed any such offence”.

The Iranian was observed steering a dinghy for two minutes by Border Force, in June 2019, and said he organised the crossing with other migrants he met in the Calais “jungle”.

Mr Bani said he had tried to flag down an RNLI boat and was “relieved” to be rescued by the Coastguard. He was convicted in November 2019 and jailed for six years.

Fellow appellant Mohamoud al-Anzi had also denied assisting unlawful immigration and told police: “I don’t understand what I have done wrong.”

The Kuwaiti said he paid a people smuggler £4,000 for the crossing and only took the helm “after an emergency”.

He was convicted in February 2021 and sentenced to three years and nine months’ imprisonment.

The third appellant, Iranian Ghodratallah Zadeh pleaded guilty to assisting unlawful immigration in October 2020 on the basis of incorrect legal advice, and was jailed for two years.

He said he shared the steering of a dinghy with other passengers, had been trying to head for Dover at the point they were intercepted, and was not aware of the law.

All three convictions were quashed and the men will be freed from prison.

A fourth appellant, Iranian Fariboz Rakei, will face a retrial. He was convicted of assisting unlawful immigration in March and jailed for four years and six months.

The Court of Appeal said seven other cases “raising similar points” will be heard in January, and ordered the CPS to set out its response.

A CPS spokesperson said: “We won’t hesitate to prosecute those suspected of immigration offences if our legal test for a prosecution is met and against the law as it currently stands. Since prosecuting these cases, new judgments have clarified a very complicated section of law.

“In the summer we published revised guidance – taking into account recent judgments – about prosecuting those who exploit and profit from the desperation of others or put lives at risk through controlling or piloting overcrowded small boats across the busiest shipping channel in the world or confining them in lorries.”