Lord Justice Edis says law was misunderstood when investigating, charging and prosecuting the cases
The Court of Appeal yesterday quashed the convictions of three asylum seekers who were separately found guilty of assisting unlawful immigration under section 25 of the Immigration Act 1971 for helping to steer migrant boats across the English Channel. A fourth man is scheduled to face a re-trial before his conviction can be formally quashed.
EIN members can read the judgment in Bani v The Crown here.
The Court found that the convictions of the four men were unsafe, as the prosecution had not proved that the men knew or had reasonable cause to believe that, by helping to steer the boats, they were unlawfully assisting entry or attempted entry into the UK without leave.
One of the men told BBC News: "I'm not a criminal, not a smuggler. I just sat in a boat and came here for asylum claim."
Lord Justice Edis noted in the judgment: "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. 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."
Drawing on the similar Court of Appeal case of Kakaei [2021] EWCA Crim 503 from April, Lord Justice Edis said the law had been misunderstood when investigating, charging and prosecuting the cases, including by the Home Office and the Crown Prosecution Service (CPS).
Edis noted: "[T]he true requirements of the law and the relevance of the distinction between entry and arrival was not alive in the minds of the Border Force officers who apprehended these appellants, processed their cases, interviewed them and caused them to be charged. The CPS has also accepted that insufficient scrutiny was given to this issue in preparation of the case for trial."
In trying to understand how the situation arose, the judgment explains: "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 for summary offences under section 24 of the 1971 Act and either way offences under section 25 without any careful analysis of the law and appropriate guidance to those conducting interviews, taking charging decisions, and presenting cases to courts. It appears also that the judges in the small number of courts where these cases are tried, and defence practitioners followed the flawed view of the law which developed without conducting analysis of their own resulting in an erroneous shared approach."
One of the men in the case had pleaded guilty on the advice of his barrister, who believed his client did not have a defence.
Lord Justice Edis said: "In truth, this guilty plea was not entered simply because counsel gave wrong advice. It was entered because a heresy about the law had been adopted by those who were investigating these cases, and passed on to those who prosecuted 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 Joint Council for the Welfare of Immigrants said the man's prosecution was flawed from the outset and he had been deprived of a fair opportunity to decide whether to plead guilty or not.
Doughty Street Chambers barrister Kate O'Raghallaigh, who represented one of the appellants in the case, commented: "This decision to overturn these convictions represents an important victory for the individuals represented ... The verdict also represents a significant challenge to this government's increasing criminalisation of people seeking asylum in the UK, and follows another overturned conviction of a man jailed for boat-steering earlier this year."
O'Raghallaigh noted that there have been 67 similar convictions since the start of 2020.
She added: "This decision makes it clear that our government imprisoned four vulnerable people, simply because they sought asylum here. Their attempt to criminalise the act of seeking safety is a travesty. These men were victims of a system that leaves people with no other option than dangerous journeys here. Our government could prevent people risking their lives like this by providing safe passage – instead they have tried to turn us against people seeking protection."
Zoe Gardner of JCWI said the judgment should set an important precedent against the Government's future attempts to criminalise asylum seekers.
The Nationality and Borders Bill will introduce new laws that will make it a criminal offence to knowingly arrive in the UK without a valid entry clearance to seek asylum. See Adrian Berry's analysis here for background.
In response to yesterday's judgment, a CPS spokesperson was quoted by The Independent as saying: "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."