University of Oxford report finds hundreds have been charged under new Nationality and Borders Act 2022 offences
An important new report published by Border Criminologies and the Centre for Criminology at the University of Oxford details how asylum seekers crossing the Channel on small boats are being arrested and imprisoned in the UK. It finds significant procedural and legal injustices are occurring in courts in Kent.
The 44-page report, "No such thing as justice here": The criminalisation of people arriving to the UK on 'small boats', can be downloaded here.
Author of the report, Vicky Taylor, is a PhD candidate at the Centre for Criminology and an associate director at Border Criminologies. The report is informed by the collective work of Captain Support UK, Humans for Rights Network, and Refugee Legal Support.
The report draws on wide-ranging research and analysis, but the primary source of data comes from physically observing over 100 court hearings in magistrates' and Crown courts in Kent. This is supplemented and corroborated through interviews with lawyers and interpreters working on the cases. It is further informed by the direct testimonies of four people with personal experience of being criminalised for their arrival in the UK.
A helpful introductory chapter considers the legal framework behind the arrests and the new offences under the Immigration Act 1971 of 'illegal arrival' in the UK and the facilitation of illegal arrival that were brought in by the Nationality and Borders Act 2022 (NABA).
"From 28th June 2022, anyone arriving to the UK irregularly could be arrested, charged, and imprisoned," the report explains. The report examines in detail how this is being enforced in practice. It looks at who is being arrested, how they are being arrested, what they are being charged with, the subsequent cases at Canterbury Crown Court and Folkestone Magistrates' Court, and the effects of imprisonment on those convicted.
According to the report, 240 people arriving on small boats were charged with the offence of 'illegal arrival' from June 2022 to June 2023. In practice, those being prosecuted either have a previous 'immigration history' in the UK or are identified as steering the boat as it crossed the Channel.
The report states: "The first sentencing of the new offence of 'illegal arrival' was on 28th September 2022. The factor that led to the man's arrest was his alleged role in steering the dinghy he arrived on. Judge James provided sentencing remarks, without the intention that these should dictate future sentencing, but which have since been relied upon heavily by other Judges and Recorders sentencing similar cases […] Judge James concluded that a 12-month starting point after trial would be appropriate for this case. This would reduce to 8 or 9 if a guilty plea had been given. This general approach used has now been upheld by the Court of Appeal."
49 people were also charged with the more serious offence of 'facilitation' in addition to 'illegal arrival'. For facilitation, Judge James suggested during the first sentencing in June 2023 that between 3 and 6 years would be appropriate, with a starting point after trial of 4 years. A subsequent Court of Appeal case reduced that to a starting point of 3 years where the level of culpability is low.
Those accused of the offences were usually advised to plead guilty to benefit from reductions in their sentence, which restricted the possibility of legal challenges. People before the courts said they were confused and unable to follow proceedings, and there were frequent problems getting interpreters. The report concludes that significant procedural and legal injustices are occurring in courts in Kent.
In a press release, the University of Oxford highlighted: "The vast majority of those convicted of both 'illegal arrival' and 'facilitation' have ongoing asylum claims. Victims of torture and trafficking, as well as children with ongoing age disputes, have also been prosecuted. Those arrested include people from nationalities with a high asylum grant rate, including people from Sudan, South Sudan, Afghanistan, Iran, Eritrea, and Syria."
Research by the Humans for Rights Network also found that 15 people charged with the new offences were age-disputed children who were wrongly treated as adults. The majority were from Sudan and South Sudan, and all have claimed asylum. 14 spent time in adult prisons. The report notes that the figure of 15 is very likely to be an undercount, as the Home Office fails to collect data on how many people with ongoing age disputes are convicted.
"These young people have experienced serious psychological and physical harm in adult courts and prisons, raising serious questions around the practices of the Home Office, Border Force, Ministry of Justice, magistrates and Judges, the CPS, defence lawyers, and prison staff," the report emphasises.
According to the report, there is no evidence that prosecuting asylum seekers arriving by small boat will have the 'deterrent' effect used to justify them. Imprisonment of asylum seekers "achieves nothing except human misery, with those imprisoned reporting significant distress which impacts in their mental health."
In conclusion, the report says the practice needs to end immediately:
"We call for an immediate end to the practice of criminalising people for arriving at the border in search of safety or a better life. This is a practice which commentators argue contravenes international law, including Article 31 of the Refugee Convention, the Palermo Protocol, and Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings. It causes human misery, both at the time of imprisonment, and long after. To end with the words of Ibrahim, from Sudan: 'I laugh when people say about justice in UK, about human rights. There are none here. There is no such thing as justice here'."