Small boats: Kakaei, Bani and the Nationality and Borders Bill

This article was written by One Pump Court pupil Margo Munro Kerr

Kakaei and Bani

In order to claim asylum in the UK, you need to be physically in the UK. If you want to enter the UK, you need entry clearance. But, you can arrive in the UK without entering the UK. That is what the Court of Appeal found in two 2021 judgements: R v Kakaei [2021] EWCA Crim 503 and Bani v The Crown [2021] EWCA Crim 1958.

In both Kakaei and Bani, the appellants had been convicted of assisting unlawful immigration having steered small boats containing asylum seekers that were apprehended in UK waters and conveyed to a port. The question for the court was whether it could be shown that those in the boat intended to land anywhere other than at a port. At ports there is a designated immigration area. When one has reached that area but gone no further, one has arrived in the UK, but not entered for immigration purposes. In the designated area it is possible to claim asylum, after which one is granted limited leave to enter as an asylum seeker. Arrival without leave to enter is not currently against the law or immigration rules; entry is.

In Kakaei and Bani, the convictions were quashed because it could not be proved that those in the boats were not intending to reach a port or be rescued at sea and be conveyed to a port. It is expected that a number of other appeals against similar convictions will now be launched, and indeed the bench that heard Bani is due to reconvene this month to hear several more. The consequences for those convicted will be immense: assisting unlawful immigration currently carries a penalty of up to 14 years in prison; Mr Bani had been sentenced to six years in prison (later reduced on appeal to 5 years).

The Nationality and Borders Bill

What will the Nationality and Borders Bill (“the Bill”) mean for cases such as these?

Clause 39 of the Bill (in its current version, published on 9 December 2021) states:

(D1) A person who—

(a) requires entry clearance under the immigration rules, and

(b) knowingly arrives in the United Kingdom without a valid entry

commits an offence.

This appears to make it a criminal offence even to arrive in the UK as an asylum seeker without leave to remain. Indeed, this would accord with the intentions of the Home Secretary, who said in the Bill’s second reading in the House of Commons: “Genuine people are being elbowed aside by those who are paying traffickers to come to our country.” One of the aims of the Home Secretary in bringing this Bill is to stop small boat crossings. Her method is criminalisation.

If clause 39 of the Bill passes into primary legislation, those in a similar situation to the appellants in Kakaei and Bani will not be able to avoid conviction for assisting unlawful immigration in future.

Clause 39 of the Bill is contrary to article 31 of the Refugee Convention, which prohibits penalisation of refugees coming directly to the UK from a country of persecution under the definition given in the Convention. Although it is doubtful that France would qualify as such a country for most small boat migrants in the eyes of a UK court, there may well be a situation where an individual flying directly from a qualifying country to the UK without entry clearance in order to claim asylum was penalised under clause 39. But, as clause 39 will be passed into primary legislation if passed, and as the Convention is not directly enforceable in UK law, the Bill (once passed into law) will take precedence over the Convention.

The Bill will present a further alternative charge for prosecutors of asylum seekers. Clause 40 of the Bill amends s 25 of the Immigration Act 1971 (“the Act”), in which the core criminal charges relating to entry without leave are located. At clause 40(3) of the Bill, s 25A(1)(a) of the Act (helping asylum seeker to enter United Kingdom) is amended such that it will no longer be necessary for the prosecutor to prove that the Defendant facilitated the arrival of an asylum seeker for gain for the offence to be proved. While for gain encompassed not for profit facilitation, for example on a mutual or cost-sharing basis, the offence will be further broadened to apply to those who are not receiving any sort of payment at all.

During the readings of the Bill in the House of Commons, both the Home Secretary and the Shadow Home Secretary professed their desire to clamp down on criminal smuggling networks and to protect genuine asylum seekers. They differed on whether the Bill would be the best way to do it. The shadow Home Secretary is right that the Bill will not do what it sets out to do. Opening up s 25 of the Act in that way to allow prosecution of asylum seekers, whether “genuine” or not, regardless of whether they have received any benefit for assisting others to make the passage to the UK, will criminalise any small boat migrant who touches the tiller, or helps another into the boat. This is, on any standard, horrific.

How to stop people trafficking

Both politicians are wrong to think that migrants can be neatly categorised into genuine asylum seekers, economic migrants, or criminal smugglers. As Bani and Kakaei highlighted, a genuine asylum seeker can wind up charged with a trafficking offence simply for handling the tiller. More broadly many people in vulnerable situations are forced to work for traffickers in order to pay for their own passage, or in order to be under their protection.

Does this remind you of anything? It reminds me of how people in vulnerable situations are drawn into drug smuggling networks, to pay for their own addiction or in order to have the protection of a particular gang. Trafficking networks exist for the same reason that drug smuggling networks exist: there is a human need not being met through legal routes.

Just as the only way to stop drug trafficking will be through legalising and regulating access to drugs (see Portugal, Switzerland, the Netherlands, Washington State, etc for success stories), the only way to stop people trafficking will be the creation of genuinely safe, legal, and accessible routes to enter and remain.

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