Sentencing Council opens consultation on its new guidelines for immigration offences

This week the Sentencing Council published new draft sentencing guidelines for immigration offences within the Immigration Act 1971 and Identity Documents Act 2010. This includes offences expanded by the Nationality and Borders Act 2022. Previously, there had been no formal guidelines for these offences.

The draft guidelines have been published for consultation, a process open to members of the judiciary, legal practitioners, and any individuals who work in or have an interest in criminal justice. It is a 12-week consultation, closing on 12 June 2024.

Background: immigration offences

Previously on this blog, Larry Lock and Francesca Parkes discussed the impact of the Nationality and Borders Act 2022 in criminalising those seeking safety in the UK, particularly through its creation of the new offence of ‘illegal arrival’ (with a maximum sentence of 4 years), and expansion of the offence of ‘facilitating a breach of immigration law’ (with a maximum sentence now of life imprisonment).

As I explain in my recent research report, published by the University of Oxford, these offences are being applied against people crossing the Channel in ‘small boats’, as well as those arriving via other means. Not everyone found to be in the country without entry clearance is charged with the offence of ‘illegal arrival’.

For ‘small boat cases’, usually people are only arrested if they were identified with their ‘hand on the tiller’ of the dinghy, or as having a ‘previous immigration history’ with the UK. Among those arrested are people seeking asylum, victims of trafficking and torture, and children with ongoing age disputes. Humans for Rights Network has now had seven clients whose ages have been accepted after spending time in adult prison for ‘illegal arrival’.

Since the Nationality and Borders Act came into force in June 2022, those arrested and charged after arriving on ‘small boats’ across the Channel have usually been advised to plead guilty in Folkestone Magistrates’ court very soon after arriving into the country. Before magistrates’ sentencing powers were reduced back to six months’ custodial sentences, people were often sentenced here (March 2022 – March 2023).

Since March 2023, people convicted have been invariably sent to the Crown Court for sentencing. Bail is always denied. Often, people imprisoned for these offences spend longer on remand waiting for their sentencing hearing than their eventual custodial sentence.

What offences are addressed in these proposed sentencing guidelines?

The draft guidelines cover the 1971 Immigration Act offences of:

• Facilitation (assisting unlawful immigration to the UK and helping asylum seekers to enter the UK) (sections 25 and 25A);
• Deception (section 24A);
• Breach of deportation order (section 24(A1));
• Knowingly entering the UK without leave (section 24(B1)), and
• Knowingly arriving in the UK without valid entry clearance (section 24(D1)).

The draft guidelines also cover the Identity Documents Act 2010 offences of:

• Possession of false identity documents with improper intention (section 4) and;
• Possession of false identity documents without reasonable excuse (section 6).

Current sentencing authorities for ‘small boat cases’

Larry and Francesca’s post provides detail on the Court of Appeal cases currently being used as the authority on ‘small boat’ prosecutions. To summarise, for ‘facilitation’ this is currently R v Ahmed [2023] EWCA Crim 1521, which set out a starting point of 3 years before reduction for plea and aggravating/mitigating factors. For the offence of ‘illegal arrival’, the Court of Appeal authority is currently R v Ginar [2023] EWCA Crim 1121, which set out a starting point of 12 months.

The Sentencing Council seeks to provide further guidance by laying out what it considers to be of importance in terms of indicators of culpability and harm, as well as mitigating and aggravating factors. It notes that the Nationality and Borders Act 2022 increased the maximum sentence for section 24 (B1) and (D1) for illegal entry/arrival to four years’ imprisonment. Section 24 (A1) for arriving in breach of a deportation order was increased to a maximum sentence of five years. The maximum sentence under section 25 for facilitation (including those prosecuted for having their ‘hand on the tiller’ of the dinghy) was increased to life imprisonment.

This increase in maximum sentence was justified by the government, as the Sentencing Council rightly notes, by arguing that the previous lower sentences “did not provide the necessary deterrent”. This logic is frequently repeated, not just in Parliamentary debates and the media, but also in court. It was therefore interesting to see it being challenged, quite rightly, by the Court of Appeal in the current authority case, R v Ginar [2023]:

“the circumstances of those who commit offences of that kind, as opposed to those who organise them, will usually be such that they are unlikely to be deterred by the prospect of a custodial sentence if caught. We know of no evidence of research which indicates the contrary”

While those convicted after arriving on ‘small boats’ are at the moment invariably given an immediate custodial sentence, it is worth emphasising that the Sentencing Council does not rule out high-level community orders for ‘illegal arrival’.

Implications of sentences for immigration cases

As it stands, people who receive sentences of 12 months or over, the provision for automatic deportation in section 32 of the UK Borders Act 2007 apply. People are generally detained for a short period in these circumstances pending immigration bail. However, as with all ‘small boat arrivals’, the vast majority have ongoing asylum claims and therefore are unlikely to be removed imminently. The majority are released on immigration bail.

As discussed earlier this month at Garden Court, we have unanswered questions about the implications of different sentence lengths for people’s ongoing asylum claims. It is more certain, however, that under current law there will be longer term implications of such a sentence on someone’s immigration status. Part 9.4.1 of the immigration rules (as amended) states any request for entry clearance or leave to remain must be refused if the applicant has received a custodial sentence of 12 months or more.

This new sentencing guidance matters, not just for how long people spend in prison for immigration offences, and whether they can be considered for removal, but also for their longer-term prospects and stability in the UK.

Responding to the consultation

The consultation closed on 12 June 2024 and can be accessed either by answering the questions here by email to consultation@sentencingcouncil.gov.uk or by using the online consultation at https://consult.justice.gov.uk/.