Criminalizing migrants under the new Immigration law

The 2022 Nationality and Borders Act (NBA), which came into effect on 28 June 2022 is seeking to criminalize migrants crossing the Channel to the UK to seek asylum. The new act created two new offences related to migrants crossing the Channel: arrival without valid entry clearance and the facilitation of such arrivals. The government’s stated purpose in enacting these changes was to discourage Channel crossings by criminalising migrants who cross in small boats from beaches in northern France and Belgium.

The government amended sections 24 and 25 of the 1971 Immigration Act by introducing section 40 of the 2022 Nationality and Borders Act as a response to two judgments made by the Court of Appeal in 2021: R v Kakaei [2021] and R v Bani [2021]. These judgements overturned the convictions of several appellants who had assisted in steering dinghies across the Channel and had been charged with facilitating the illegal entry of the other migrants on board contrary to s. 25 of the 1971 Act. The court ruled that a person was deemed not to have unlawfully entered the UK if they were intercepted or rescued at sea and then taken to the port of the UK to claim asylum.

First legal challenge to criminalising asylum seekers reaches Court of Appeal

The first case regarding the implementation of the new Nationality and Borders Act 2022 was held in the Crown Court at Canterbury.  The case is R v Mohamed and others and involves four Sudanese defendants who are being prosecuted for offences contrary to s.21D1 ( Illegal arrival to the UK without valid entry clearance) and to s.25(1) (Assisting unlawful immigration). The central issue in this case was whether the amendments to sections 24 and 25 had been effective in bringing about the change in the law intended by the government and whether the prosecution of defendants in these circumstances was lawful.

The court ruled in favour of the prosecution, confirming that the amendments introduced by section 40 of the Nationality and Borders Act had achieved the objective of criminalizing cross-channel crossings. On the basis of this ruling, all asylum seekers can be prosecuted for crossing the Channel, but decisions on whether to prosecute are at the discretion of the Crown Prosecution Service, who will consider the public interest test case by case. According to the CPS Charging Guidelines, the maximum punishment for those who commit an offence against s.25 of the NBA 2022 is life imprisonment.

At the court of Appeal

On the 1st of February 2023, the appellants appealed the Crown Court’s decision based on two grounds of appeal:

1. S. 24(D1) offence is not an immigration law as defined by section 25(2), it cannot be charged with facilitating a violation of immigration law. This is due to the fact that Section 24(D1) does not govern an “entitlement to enter the United Kingdom,” but rather creates a criminal offence; and

2. The prosecution of asylum seekers in these circumstances is inconsistent with the UK’s obligations under Article 31 of the 1951 Refugee Convention. According to the new rules, these apply to everyone who requires an entry clearance on arrival, including asylum seekers. There is simply no existing provision under the entry clearance rules that allows permission to enter the UK for the purpose of seeking asylum. Asylum can only be requested on arrival to the UK, and not from abroad.

During the appeal hearing on February 1, 2023, the Court of Appeal considered both arguments. The decision of the Court is expected in a few weeks.