How the Nationality and Borders Act has criminalised those seeking safety in the UK

Nationality and Borders Act: Although now largely eclipsed by the Illegal Migration Act 2023, the Nationality and Borders Act 2022’s legacy will be its criminalisation of the act of seeking asylum in the UK. This article aims to give an overview of the changes to the law.

Entry vs arrival

By way of background, almost all asylum seekers arriving in the UK by small boat are either intercepted in the Channel or met by Border Force on arrival. Under the previous provisions people who claimed asylum on arrival had not technically entered the country yet, and so could not be prosecuted for breaching immigration laws or unlawful entry.

The word ‘arrival’ has a specific meaning in UK immigration law; there is a legal distinction between arriving in a country and entering it. Arrival happens when a person’s plane touches down in a country or they arrive at a designated port with an “approved area”. Entry only takes place if someone passes immigration control, leaves an approved area or lands on a beach without an approved area. See section 11(1) of the 1971 Act.

The arrival/entry distinction also protected people who helped steer the boats across the Channel. Border Force uses digital surveillance to identify individuals who have played a part in steering the boat and before the 2022 Act the authorities tried to prosecute these individuals for assisting unlawful immigration.

In the cases of R v Kakaei [2021] EWCA Crim 503 and R v Bani [2021] EWCA Crim 1958 the Court of Appeal quashed the convictions of five defendants who had played a role in steering a dinghy to shore, as the defendants had not assisted anyone enter the country. The prosecution needed to show that unlawful entry was actually on the cards.

It is this distinction that the 2022 Act provisions sought to target. Sections 40 and 41 of the 2022 Act were introduced expressly to remove the distinction drawn in Kakaei and Bani. The House of Commons research briefing on the Bill published in July 2021 stated the 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 were contested in the Court of Appeal in R v Mohamed[2023] EWCA Crim 211 which sadly confirmed that prosecuting asylum seekers for arriving in the UK is permitted under the 2022 Act. The Court of Appeal denied permission to appeal to the Supreme Court, rejecting the argument that the case was one of wider public importance.

What are the offences in the 2022 Act?

The 2022 Act expanded the scope of offences that already existed in the Immigration Act 1971. Most significant are the offences under section 24 and 25 of 1971 Act.

The key takeaway here is that the act of merely arriving in the UK, even to claim asylum, is now an offence. Under section 24(D1) of the 1971 Act it is now an offence to arrive or attempt to arrive in the UK without valid entry clearance; the person no longer needs to enter the country to commit the offence.

Similarly, under section 25(1) of the 1971 Act it is now an offence to facilitate the arrival or attempted arrival in the UK. The Nationality and Borders Act 2022 removed the ‘for gain’ requirement in section 25, extending what is essentially a people smuggling offence to anyone in a dinghy who puts their hand on the tiller.

Unlawful arrival prosecutions

The recent Court of Appeal judgment of R v Ginar [2023] EWCA Crim 1121 held that section 24(D1) cases will generally cross the custody threshold and that, before individual circumstances are taken into account, the appropriate sentence for the offence is a year in prison. Before the 2022 Act came into force the maximum sentence for a section 24 offence was six months’ custody; now it is four years.

The court in Ginar stressed that many cases will have “powerful features of personal mitigation”. An arguable case for refugee status will be a relevant consideration. Beware that making an asylum claim without merit can support the prosecution case.

People with a history of entry offences, or who arrive in breach of deportation or exclusion orders, are more likely to be prosecuted. Other aggravating factors are using violence or making financial gain in committing the offence, as well as destroying documents.

Assisting unlawful immigration prosecutions

Sentences for assisting unlawful immigration under section 25 were increased under the 2022 Act to a maximum sentence of life imprisonment. The Crown Prosecution Service gives guidance stating that people who are found to have planned or organised the crossing, or show that they did so with the “intention or expectation that they will be intercepted”, will face more serious sentences, as will anyone shown to have disrupted trade routes. Lesser sentences will be given where a person is assisted to safeguard other passengers.

Anyone who is identified as having their hand on the tiller during a crossing may be prosecuted under section 24 and section 25. In many cases, the prosecution does not have enough evidence to secure a section 25 conviction but will nevertheless claim they have imprisoned the boat driver if the person pleads guilty to section 24.

Observations from sentencing hearings for supposed small boat pilots who plead guilty to section 24 after being identified as drivers have revealed that they tend to receive lower sentences than those with a previous immigration history.

Prosecution and public interest considerations

Of course, not everyone who falls in the remit of the offences will be charged. The judicial system would struggle to process the cases of the 44,460 people who arrived in small boats over the 12 months following the coming into force of the 2022 Act, and many of them are also children. Explanatory Notes to the 2022 Act state that the offence must be “serious enough” to warrant criminal proceedings.

The CPS has discretion as to whether it decides to charge a suspect and must be satisfied that bringing a prosecution is in the public interest. It is difficult to see how the CPS could justify the prosecution of an unaccompanied asylum-seeking child for arriving in the UK illegally. However, problematic age assessment practices in Dover have resulted in several age-disputed children being held in custody in adult prisons.

One of the CPS’s public interest considerations is Article 31 of the Refugee Convention. Article 31 is a ‘non-penalisation clause’ prohibiting signatories from penalising refugees who enter a country without permission. Article 31 has only been partly incorporated into domestic law as a defence against immigration offences under section 31 of the Immigration and Asylum Act 1999.

Home Office guidance on section 31 states that the defence is only available under specific offences (set out at section 31(3) of the 1999 Act), and in any case the defendant must have claimed asylum as soon as practicable. Other statutory defences available to asylum seekers are set out in the guidance, such as the Modern Slavery defence.

Importantly, the guidance states that in all cases the CPS is wholly reliant on the Home Office for evidence that a defence applies. Immigration and criminal practitioners should therefore take this to mean that it’s down to them – not the Home Office – to ensure the CPS has the correct evidence before it.

Because of this rather narrow remit, the CPS states they will take Article 31 into account before deciding to prosecute. One would assume this means it is less likely that the CPS will prosecute a person who is a genuine refugee, who claimed asylum without delay, had good cause to enter the country without permission, and committed offences that were necessary to flee persecution.

However, Freedom of Information requests have revealed that the top 5 nationalities prosecuted under section 24 include Afghan and Sudanese asylum seekers who have 99% and 95% grant rates on initial asylum claims.

Conclusion

Initial commentary on the Bill before it became the 2022 Act already highlighted this provision as a violation of the non-penalisation clause. As the Refugee Convention remains an instrument of international law and not directly justifiable in UK courts it remains to be seen how this lack of compliance can be effectively challenged.

This briefing was written jointly by Larry Lock and Francesca Parkes. Francesca coordinates a group of immigration, criminal and public law practitioners who meet to discuss evolutions of this criminalisation practice and strategise potential challenges. To join the group please contact Francesca at coordinator.france@refugeelegalsupport.org.