BY FRANCESCA PARKES
The Border Security, Immigration and Asylum Bill proposes to introduce new offences which target people arriving in the UK on ‘small boats’. However, the Nationality and Borders Act 2022 already created a new offence which can be applied to anyone arriving or attempting to arrive without a valid entry clearance from France or Belgium. Francesca Parkes, Senior Caseworker and Northern France Coordinator at Refugee Legal Support, explains how Section 24 D1 of the Immigration Act 1971 is currently being used arbitrarily to prosecute people arriving on small boats, the lack of defences, and how the Government could amend the Bill to improve the situation.
What does the new Bill do?
The Border Security, Asylum and Immigration Bill proposes to introduce criminal offences as part of a suite of new measures aimed at reducing the number of people crossing the Channel in dinghies and targeting groups which organise the journeys. The proposed offences include:
- supplying and handling articles for use in immigration crime, and
- collecting information for use in immigration crime.
The provisions are vague and widely applicable to anyone making a small boat journey from France. It is unclear why these new measures are needed, given the previous Government had already introduced a new crime which can be applied to imprison anyone arriving without a valid entry clearance. This has so far been unsuccessful in stopping the boats, but the application in practice has created a situation in which basic principles of the rule of law have been eroded.
Without further amendments, the new Bill is in danger of expanding the current situation whereby the Crown Prosecution Service (CPS) and Home Office can, without much possibility for challenge, successfully prosecute anyone arriving on a dinghy seeking asylum.
Attempting to arrive without a valid entry clearance: who is arrested and why?
In 2024, 36,816 people arrived in 695 dinghies. Each dinghy presumably has at least one person with their hand on the tiller to steer in the direction of the UK. It is well known that some of these people, those the Home Office refers to as ‘small boat pilots’, are arrested and imprisoned.
Previously, it was only an offence to enter the UK without a valid clearance. The Court of Appeal in R v Kakei [2022] held this meant that small boat pilots could not be prosecuted for facilitating unlawful entry if the aim was for everyone on board to arrive in Dover and claim asylum. Section 40 of the Nationality and Borders Act 2022 (NABA 2022) introduced a new offence into the Immigration Act 1971: Section 24 D1, the offence of arriving in the UK without a valid entry clearance. It also changed the definition of facilitation in Section 25 of the Immigration Act 1971 to remove the ‘for gain’ requirement. The Government stated that this new offence would close the ‘loophole’ and make it possible to criminalise small boat pilots again.
However, the majority of people arrested after being identified as having their hand on the tiller will be charged with both Section 24 D1 and Section 25 facilitation offences, but then will ultimately only be convicted of unlawful arrival. Data obtained via Freedom of Information requests shows that, of the 101 people arrested under Section 25 (as amended) who arrived on and/or piloted a small boat in 2024, only 27 were charged and fewer than five were convicted. Nevertheless, in 2024, 62 individuals were convicted of Section 24 D1 after being identified as small boat pilots.
As Section 24 D1 is not very long, we can set it out in full:
‘(D1) A person who—
- requires entry clearance under the immigration rules, and
- knowingly arrives in the United Kingdom without a valid entry clearance,
commits an offence.’
Almost everyone who arrives in the UK on a dinghy must have committed this offence. Yet, in addition to the small boat pilots, only 65 out of the 36,816 people who arrived on dinghies in 2024 were arrested and convicted of a Section 24 D1 offence.
Why are some people arrested and others not?
Around half the people who have been prosecuted under Section 24 did not travel on small boats. In the first six months of 2024, of the 127 people convicted, only 51 arrived in small boats. The reasons why people are prosecuted under Section 24 D1 are varied and the law is applied inconsistently.
In addition to people identified as small boat pilots, the CPS guidance lists 14 factors tending in favour of prosecution. These are the most common factors cited in small boat cases:
‘Evidence of repeated attempts to enter the UK illegally and Offenders who are in breach of a Deportation Order and those who are repeat offenders who have previously been removed.’
Many of the people who have been arrested for Section 24 D1 have some previous immigration history in the UK such as, for example, an unsuccessful asylum claim, or an asylum claim that was treated as withdrawn. Some people have previously been removed under the previous Dublin III regime, or were deported following conviction of a criminal offence. If someone whose biometrics have already been registered in the UK system (re)-enters in a small boat, this will be flagged to the Home Office who will share the information with the CPS and earmark them for prosecution. We know one man who was charged with Section 24 after arriving in a small boat as his fingerprints had been registered by UK Border Force in the Short Term Holding Facility at the juxtaposed controls in Calais one year previously when he unsuccessfully tried to enter the UK in the back of a lorry.
‘Evidence that the suspect was previously refused entry clearance or a prior application for an Electronic Travel Authorisation (ETA) to the UK.’
There have been at least two cases of individuals charged with Section 24 D1 because they had previously made unsuccessful visa applications to the UK. Biometrics taken for a visa application are stored in the Home Office system and will flag a small boat arrival as someone who was previously refused entry clearance. The illogical result is that those who have tried to come by a safe and legal route are penalised on arrival. The vast majority of others, who never attempted to arrive in the UK with a visa and only arrive by small boat, are not prosecuted.
‘Evidence of violence / harm or risk to life to others. This will include violence perpetrated against the French or any overseas authorities during their attempts to prevent boats from being launched.’
Two people (SA and AK) seeking asylum were arrested in 2023 after the French police shared bodycam footage of them resisting police intervention on the beach in France. SA and AK both pleaded guilty to arriving without a valid entry clearance, but the sentencing judge took into account the sentencing guidelines for assault and sentenced them to 14 months and 12 months respectively. It would have been open to the French police to pursue an extradition request to prosecute SA and AK in the French courts for assaulting an emergency worker or similar offence. If this had happened, SA and AK would have been able to challenge the evidence and present a defence. However, as they were charged with arriving in the UK without a valid entry clearance, a crime which they had ostensibly committed, their lawyers advised them to plead guilty. Finally, it is worth noting that when SA and AK were arrested in the summer of 2023, evidence of violence perpetrated against the French police was not on the list of aggravating factors.
Most recently, the media widely reported the arrest of Mosab Abdulkarim Gassas, a man from Gaza with a large social media following who shared a video of his arrival in the UK by dinghy. He had posted previously about his allegiance with Hamas which led to a campaign group raising concerns about his arrival in the UK. There is no evidence to suggest that he piloted the dinghy, previously attempted to enter the UK, or any of the other factors in the CPS guidance. For now, posting on Facebook about potential support for Hamas is not on the list of aggravating factors. The police could have investigated his social media accounts and charged him with a different crime if there was evidence of hate speech, for example. However, following political pressure, he has been charged with Section 24 D1, an offence to which, like everyone else in the dinghy, he has no defence by virtue of having succeeded in arriving in the UK.
Why isn’t there a Refugee Convention defence?
Section 31 of the Immigration and Asylum Act 1999 provides a statutory defence to many other offences people may commit in the course of travelling to the UK in an irregularised way, such as possession of a false identity document, obtaining leave by deception, etc. However, the explanatory notes for Section 40 of NABA 2022 set out:
‘The intention is that these new offences of people arriving in the UK without a required entry clearance (EC) or ETA apply to everyone who requires an EC or ETA on arrival. These offences will cover all asylum claimants who arrive without the necessary EC or ETA. As a matter of law, refugees will be in scope of the offence but decisions on prosecutions remain a matter for the Crown Prosecution Service… who will take into account the public interest test.’
The result is that deciding whether someone seeking asylum is imprisoned for arriving in the UK unlawfully is entirely determined by the CPS. Furthermore, the availability of the Refugee Convention defence is entirely up to the discretion of the CPS, who decides whether to charge someone who has arrived unlawfully with a Section 24 D1 offence, or another more specific offence for which the defence is available. In some cases, the CPS has charged people who have arrived by plane with both a false document offence and Section 24 D1. In these cases, the CPS has the authority to decide which people seeking asylum are entitled to a defence and which should be excluded by deciding which crime to charge them with, or both.
The lack of defence for Section 24 D1 is inconsistent with legislation on other criminal offences and potentially in breach of the Refugee Convention. The only challenge open to people seeking asylum is by making an abuse of process argument or engaging a public lawyer to lodge a judicial review of the decision to prosecute. In addition to access to justice challenges, both are time consuming and may not be in the client’s best interest if they lose the chance to full credit (a one-third reduction in their sentence) by pleading not guilty.
How can this situation be improved?
One of the basic principles of the rule of law is that the law should be prospective, open and clear. It is clear that anyone crossing the Channel in a dinghy may be guilty of the Section 24 D1 offence, but not everyone is prosecuted. For SA and AK, the CPS only added: ‘Evidence of violence / harm or risk to life to others. This will include violence perpetrated against the French or any overseas authorities during their attempts to prevent boats from being launched’ in February 2024, after both had been arrested in July 2023. If the list of aggravating factors can be changed retrospectively after the Government has used an arrest for political gain, then this should cause concern.
Given the wide scope of Section 24 D1, it seems unnecessary to create new offences, as it is already possible to arrest and prosecute anyone who arrives in the UK on a dinghy. The proposal should be considered part of the Government’s stated political aim to target groups which organise small boat journeys. Instead of introducing new offences which are similarly widely applicable, largely ineffective and excluded from defences which ought to be available from the Refugee Convention, the Government could instead add two amendments to begin repairing the damage done to the rule of law. First, a new clause could be introduced to expand the Article 31 defence to anyone arriving in the UK to claim asylum who is charged with an immigration crime. In addition, Section 40 of NABA 2022 could be revoked to remove the carte blanche provision which enables the CPS to imprison anyone arriving unlawfully. Without these revisions, refugees will continue to face custodial sentences following the exercise of Home Office and CPS discretion, which is neither predictable nor consistent.
Francesca Parkes is Senior Caseworker and Northern France Coordinator at Refugee Legal Support, which advocates for the promotion and protection of people’s rights throughout the migration process. She has been based in Calais for a number of years.
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