- a visa national;
- a non-visa national (not a British or Irish national) who is seeking entry for any purpose other than as a visitor seeking entry for 6 months or less, or
- a British national without the right of abode who is seeking entry for a purpose for which prior entry clearance is required under these Rules.”
- Visa nationals are listed in the Immigration Rules Appendix Visitor: Visa national list.
An ETA is a pre-departure check for a non-British/Irish person who does not require a visa when travelling to the UK. The provision now makes it an immigration offence not to have a valid ETA where one is required. The offence is committed when:
- a person is required under immigration rules not to travel to the UK without an ETA that is valid for the person’s journey to the UK; and
- that person knowingly arrives in the UK without such an ETA.
This provision will commence on a date after the new Immigration Rules come into force. It is also now an offence to obtain an ETA by deception under section 24A(1)(ii) which is also triable either way.
The facilitation offence – section 25
Section 25 prohibits facilitation of a breach of immigration law. The breach need not constitute an offence. In Javaherifard and Miller [2005] EWCA Crim 3231 the court held “… it would be absurd if unlawful presence did not constitute a breach of immigration law. Section 1(2) of the 1971 Act sets out the general principles for those who have no right of abode. They “may live in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act …”. That carries with it the necessary implication that they may only live in the UK with permission and that without that they are in breach of immigration control in living here. Section 3 which contains the provisions for general immigration control, prohibits non-British/Irish citizens to enter without leave.
When referring cases to the CPS, Immigration Enforcement (IE) should identify the law that it is said to have been breached, which must be an immigration law within the meaning of section 25(2) Immigration Act 1971.
Depending on the facts of the case, except in cases of unlawful arrival, section 1(2) and/or section 3(1)(b) Immigration 1971 Act can be relied on separately or in combination to specify the breach of unlawful entry or remaining. Taken together these provisions ‘determine’ whether a person is entering or in the UK lawfully, and comprise “immigration law”: see R v Kapoor and others [2012] EWCA Crim 435 and R v Dhall (Harpreet Singh) [2013] EWCA Crim 1610. The provisions provide as follows:
- Section 1(2): Those not having the right of abode in the UK may live, work and settle in the UK by permission and subject to such regulation and control of their entry into, stay in and departure from the UK as is imposed by the 1971 Act
- Section 3(1)(b): Except as otherwise provided by or under the 1971 Act, where a person is not a British/Irish citizen they may be given leave to enter the UK (or, when already there, leave to remain in the UK) either for a limited or for an indefinite period
In almost all such cases, the breach of underlying law for the purposes of section 25 can and should be particularised by reference to both sections 1 and 3, including where illegal arrival (under section 24(D1)) has been facilitated. This was confirmed in Mohamed & Ors [2023] EWCA Crim 211 where the Court held that the conduct facilitated need not be criminal at all; it need only be a breach of immigration law. The conduct said to have been facilitated in the indictment against Mohamed and others could have been expressed as breaches of the Immigration Rules under the regime established by section 3A of the 1971 Act.
This means that where the person being facilitated is below the age of 10, and therefore criminal responsibility, section 25 applies whether or not the underlying breach is a criminal offence.
Mohamed & Ors also confirmed that the fact that a passenger is (or may be) a refugee is not relevant to the question of whether someone is guilty of the section 25 offence and would not provide a defence. Providing an indented breach of immigration law.
Proving an intended breach of immigration law
In Bina [2014] EWCA Crim 1444 it was held that section 25(1) Immigration Act 1971 is applicable as much to those who assist asylum seekers as to other individuals. The Court of Appeal held that it was plain that there was no limitation of section 25 to non-asylum seekers and that, unfortunately, even persons who in the end are found to have genuine asylum claims have sometimes committed breaches of immigration law on securing entry to the UK. The court held that the statute is aimed at those who facilitate such unlawful entry.
Proving the intention to commit an act which amounts to a breach of immigration law is an essential element of the section 25 offence. In the context of offences involving vehicles and boats, this means proving a breach of the general principles in section 1 and 3 above which regulate entry into and stay in the UK, by seeking to facilitate arrival or entry into, or leave to remain in, the UK unlawfully.
Where a concealed method of entry is used, either by vehicle or boat, there should be no difficulty in proving an intention to breach immigration law, as in those cases the intention is to evade immigration controls altogether in order to secure entry into the country. However, where boats which are not carrying migrant passengers covertly are intercepted at sea, the position may be more complex.
Evidential considerations
Prosecution Strategy
It is important that there is early engagement with the CPS from the outset of the investigation to develop a prosecution strategy and provide early advice (EA) where appropriate. This will include advising on who should be treated as a suspect, victim or witness and the public interest in prosecuting or continuing a prosecution where Immigration Enforcement consider that administrative removal is appropriate. Early engagement is crucial where international enquiries and early financial investigation is required.
People smuggling offences are “lifestyle offences” for the purposes of proceeds of crime. It is therefore important that financial investigation is carried out in parallel. Consideration should be given to a parallel financial investigation in relation to the other offences, particularly where there is an early suspicion of financial gain.
Prosecutors should be aware of section 6 of the Code for Crown Prosecutors, in particular the factors in paragraph 6.1, when selecting the appropriate charges.
Evidence
Vehicles
The following checklist may assist in setting out potential sources of evidence where unlawful immigration is facilitated by vehicles:
- Photos/body-worn video (BWV) footage of the facilitated person(s) including clear images of any concealments
- Phones from the suspects/facilitated persons
- Tachograph evidence
- SatNav/GPS tracking
- CCTV / Automatic Number Plate Recognition (ANPR) evidence of route of the lorry and any “convoy vehicles” following to facilitate dispersal of facilitated persons
- Temperature of refrigerated freight at point of departure and time of seizure
- Travel tickets, receipts, any notes, CMRs (road consignment note)
- Cash / credit cards / bank cards found
- Locking mechanisms on the vehicle – whether locks are broken, seals have been broken and resealed, etc
- An interview covering in detail the route the suspect took, destination, where the load was put on (if it is a lorry/van), who put the load on, who owns the vehicle, who maintains it, the number of stops during travel and where the suspect stopped. All of this is crucial if a request for mutual legal assistance is to be made
- Contact ports/Eurotunnel to see if the suspect has made previous trips and details of those trips
- Foreign convictions
- Intelligence from other agencies and from International Liaison officers
- Financial investigation (in UK and overseas) to support confiscation proceedings
- Evidence of gain (financial or gain by inference)
Boats
The following checklist may assist, additionally, in setting out potential sources of evidence where unlawful immigration is facilitated by boat:
- Drone footage – this may assist with the role of the suspect in piloting or otherwise controlling the small boat
- First responder accounts from the Maritime and Coastguard Agency (MCGA), UK Border Force (UKBF) or ambulance crews identifying the role of passengers on the vessel
- Phone evidence – these may document the suspect’s role in steering or loading the facilitated persons onto the boat. The meta data can be used to prove where the boat was at the time the images were created. This may also assist with the purpose of putting the boat to sea and any planning. It is critical to attribute phones to suspects if possible
- Virtual Private Networks or encryption – this may demonstrate a sophisticated and/or clandestine approach
- Where exactly the boat was intercepted, how far offshore, at what time, in what direction it was heading, the weather conditions and tides
- Whether those on board were wearing safety equipment such as buoyancy aids, together with evidence as to the suitability or otherwise of the boat for the journey, as this is relevant to the risk of harm involved (and may be relevant to sentencing)
- Accounts from those on the boat about their intentions / who controlled the boat, and any admissions made in interview
- Whether there is a previous history of crossings or piloting boats
- Whether anyone on the boat made application for asylum and their current status
- Evidence that might prove or infer gain. Here, phone downloads might be helpful, particularly SMS or social media, in evidencing contact with persons already in the UK
- Evidence from forensic examination of the vessel, for example fingerprints from the tiller or the engine housing
- An inventory (with photographs in situ) of all of the items found in the boat, including details of life jackets/ flares/compass, etc
- Details of how much petrol was in the engine, and whether there were spare cans (and, if so, how many)
- A note of the state of the boat and engine including whether there are any leaks, etc
- In addition to the evidential considerations set out above, prosecutors should in all cases be live to any relevant unused material pertaining to the facilitated individuals that may be in the hands of third parties such as the Home Office, e.g. any records held pertaining to the facilitated individuals’ claims to stay in the UK, the result of those claims, their comments upon detection, etc. This material may also have evidential value
- There are potential challenges in relying on facilitated persons as witnesses; it is important to seek other independent evidence on which a case can be built. However, if the decision is taken to rely on evidence from a facilitated person who is not in the UK legally and is subject to removal by the Home Office, prosecutors may – with terms approved at least at DCCP level – seek to make representations to the Home Office setting out why the removal should be delayed until the witness can give evidence. This can be facilitated by the investigator when they become aware of the intended removal and thus who is handling the case. Representations to the Home Office should cover issues such as:
- The importance of the prosecution;
- The significance of the witness’ evidence;
- Whether it would be practical for the witness to be removed, and then to give evidence by video link; and
- If not, whether it would be practicable for the witness to be removed and then brought back to the UK to give evidence at trial, bearing in mind the likely cost.
Documentary Evidence
Section 32(2) of the Immigration Act 1971 provides for documents made or given by the Secretary of State or signed by him or on his behalf, to be received in evidence. Thus, correspondence from the Home Office to immigrants may be admissible in its own right.
The admissibility of other records, documents etc. are subject to the law of evidence, in particular sections 117 and 118 of the Criminal Justice Act 2003. This includes other Home Office records not falling within the scope of section 32.
Difficulties can arise when evidence is required as to the status of an illegal entrant who has already been deported. This evidence is a vital ingredient of the offence in respect of a person charged with assisting unlawful immigration.
Evidence is usually adduced of a list of legal entrants from which the particular illegal entrant’s name will be missing. The court is then asked to draw the simple inference that absence from the list equates with illegality. The list must be introduced by a Home Office official responsible for the compilation of the list, as the list is not automatically admissible: the negative inference is not an exception to the hearsay rule: R v Patel [1981] 3 All ER 94. The HO official should give evidence as to how the list was compiled and confirm its accuracy: DPP v Leigh [2010] EWHC 345 (Admin).
Phone Evidence
R (HM) v Secretary of State for the Home Department [2022] EWHC 2729 (Admin) confirmed the Immigration Enforcement blanket policy of seizure and retention of mobile phones from all migrants on small boats without consideration of the legal basis was unlawful. Section 15 (Schedule 2) of the Illegal Migration Act 2023, which came into force on 20 July 2023, confers new powers for Immigration Enforcement to search and seize Electronic Devices from persons liable to be detained.
Reasonable lines of inquiry
CPIA Codes of Practice paragraph 3.2 requires the investigator to pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the circumstances. The Attorney General’s Guidelines on Disclosure 2022 provide guidance on reasonable lines of inquiry. The Full Code Test should be applied when all outstanding reasonable lines of inquiry have been pursued,; or before, if the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Full Code Test, whether in favour of or against a prosecution.
The Threshold Test can be applied before all reasonable lines of inquiry have been completed, but only when all five conditions outlined in paragraph 5 of the Code have been met. When cases are submitted for a charging decision under the Threshold Test prosecutors must consider what further evidence can be obtained, within a reasonable period of time, to provide a realistic prospect of conviction. This evidence needs to be identifiable and not merely speculative.
This is particularly important to consider in cases involving piloting of small boats when facilitation charges are being considered. Prosecutors should discuss with investigators what further evidence will be obtained and they should consider the checklist of points given listed above in the respect of boat’s evidential checklist. If a suspect has advanced an account of their role in piloting a boat, the prosecutor should consider what lines of inquiry should be pursued to rebut or support the account. For example, whether it is a reasonable line of inquiry to obtain accounts from passengers on the boat.
Prosecutors must have regard to the impact of any failure to pursue an advised reasonable line of inquiry when deciding whether the Full Code Test can be met. If there is insufficient evidence to prove a facilitation charge it may be necessary for a prosecutor to go on to consider an illegal arrival/ entry or attempted illegal arrival/ entry offence. For these offences the reasonable lines of inquiry are likely to be different as the issue in the case will be distinct.
Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops. This includes what becomes known of the defence case, any further reasonable lines of inquiry that should be pursued, and receipt of any unused material that may undermine the prosecution case or assist the defence case, to the extent that charges should be altered or discontinued, or the prosecution should not proceed.
Common Law Defences
When reviewing immigration offences, prosecutors should consider whether there is clear evidence of a credible common law defence of duress or duress of circumstances.
Prosecutors should bear in mind that illegal immigration is often inextricably linked to human trafficking and organised crime. It is for the defence to raise sufficient evidence of duress and/or duress of circumstances to allow it to be considered by the jury. The legal burden then falls upon the prosecution to prove beyond reasonable doubt that the defendant was not acting under duress.
The UK has positive obligations under Article 4 of the European Convention on Human Rights to take operational measures to protect victims, or potential victims, of trafficking. This includes a duty to investigate, penalise and prosecute traffickers. See VCL and AN v United Kingdom (Applications 77587/12 and 74603/12) [5 July 2021].
Statutory Defences
When applicable, prosecutors should consider the following statutory defences:
- Section 31 of the Immigration and Asylum Act 1999 – whether the immigration offence was committed as a necessary part of a refugee’s journey to the UK.
- Section 2 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 – ‘reasonable excuse’ for failing to have an immigration document at a leave or asylum interview.
- Section 45 of the Modern Slavery Act (MSA) 2015 – whether an offender may have been forced, coerced or deceived into committing an offence who might be a victim of modern slavery.
- Sections 25BA and 25BB of the Immigration Act 1971, as introduced by the Nationality and Borders Act 2022, where there is rescue at sea or where individuals may be stowaways.
1. Section 31 Immigration and Asylum Act 1999
Section 31 of the Immigration and Asylum Act 1999 (IAA) provides a statutory defence for refugees committing particular offences, providing they satisfy stated conditions.
The applicable offences under section 31(3) are:
- Part 1 of the Forgery and Counterfeiting Act 1981 (forgery and connected offences)
- Section 24A of the Immigration Act 1971 (use of deception to obtain or seek to obtain leave to enter or remain or to secure avoidance, postponement or revocation of enforcement action)
- Section 26(1)(d) of the Immigration 1971 Act (falsification of documents)
- Sections 4(1) and 6(1) of the Identity Documents Act 2010
The conditions that must be satisfied for the defence to apply are set out at section 31(1) and (2).
“Refugee”, defined in Article 1 of the Refugee Convention 1951, is a person who has left their own country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Under section 31(5) a refugee is not entitled to this defence in relation to any offence committed after making a claim for asylum. Consequently, a defendant who enters the country either clandestinely or legally, claims asylum, and then obtains false documents for use in attempting to travel to another country, would be outside the scope of section 31.
Where asylum seekers arrive or enter through the use of false documents (whether by boat, commercial airline or some other means), particular consideration will need to be given to which offences are charged. They will be prima facie guilty of both a section 24 offence and a false document offence. However, section 31 will only afford a defence to the false document offence.
The defence only applies to refugees, but consistent with its statutory purpose it may be advanced at trial by those who are at that time presumptive refugees (those ultimately accorded refugee status and also those claiming asylum in good faith). In these cases, it is for the jury to determine whether the defence is made out and the issue for the jury is whether the defendant is a refugee. It is common ground that the burden would be on the prosecution to disprove the defendant’s refugee status [Mateta at 21 i) and ii)] and the jury should be directed along these lines: "Has the prosecution made you sure that the defendant is not a refugee? If you conclude that he is or might be a refugee, you must return a verdict of not guilty." The defence does not extend beyond refugees to presumptive refugees (under 339C of the Immigration Rules); see Elmi [2022] EWCA Crim 1428 at [37] and [49].
Interpretation of section 31
Section 37(4) of NABA provides that a refugee cannot claim Article 31 protection when in transit leaving the UK.
Section 37(1) of NABA provides that a refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened, if they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country. Relevant factors to assess when considering if a defence under section 31 is made out, having regard to section 37 include the following:
- What were the circumstances of their journey to and through the transiting country or countries? For example, if they were concealed in a lorry, did they have the opportunity to seek protection?
- Looking at all the circumstances:
- Was the person in the course of fleeing from persecution or indiscriminate violence?
- Were they in transit?
- Did they travel through a country/countries which are signatories to the Refugee Convention?
- How long did they stay in the transit country/countries?
- What were the reasons for delaying seeking protection?
In the case of R v Asfaw [2008] UKHL 31 the House of Lords observed that it is permissible to charge a defendant both with an offence to which the section 31 defence applies and with an offence to which it does not. However, if the second charge is based on the same conduct and is included in an indictment in order to prevent the defendant from relying on the section 31 defence, there would be strong grounds for arguing that this is an abuse of process.
In SXH v The CPS [2017] UKSC 30, the Supreme Court considered whether a suspect’s entry into the UK as an asylum seeker and the decision to prosecute her for entering with false travel documentation (an offence which could attract the section 31 statutory defence) engaged Article 8 of the ECHR. The Court held that the decision to prosecute did not amount to a breach of Article 8, observing that: “it is difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of committing a criminal offence could itself be a breach of that person’s human rights”.
Burden and standard of proof
The court in R v Mateta [2013] EWCA Crim 1372 provided a useful summary of the main elements of the defence, including the burden and standard of proof, as set out in R v Makuwa [2006] EWCA Crim 175, although should be read in the light of NABA:
The burden on the defendant as far as their refugee status is concerned is merely an evidential one i.e. they must adduce sufficient evidence to raise the issue.(See Makuwa [21, 38] for the elements that must be addressed and how the jury should be directed on them: a well-founded fear of persecution; fear based on one of the Convention reasons.) The prosecution must then prove beyond reasonable doubt that they were not a refugee. But in cases where the Secretary of State has refused an asylum application, the legal burden rests on the defendant to establish on a balance of probabilities that they are a refugee (see also section 31(7) IAA).
In respect of the matters in sections 31(a), (b) and (c) and section 31(2), the defendant has a legal burden i.e. must prove on a balance of probabilities that:
- They did not stop in any country in transit to the UK for more than a short stopover; or, alternatively, they could not reasonably be expected to have sought protection under the Refugee Convention in countries outside the UK in which they were stopped; and
- They presented themself to the authorities in the UK “without delay”, unless it was explicable that they did not present themselves to the authorities during a short stopover in this country when travelling through to the nation where they intended to claim asylum; and
- They had good cause for their illegal entry or presence in the UK; and
- They made a claim for asylum as soon as was reasonably practicable after their arrival in the UK, unless it was explicable that they did not present himself to the authorities during a short stopover in this country when travelling through to the nation where they intended to claim asylum.
- It follows that the fact a refugee stopped in a third country in transit is not necessarily fatal and may be explicable: the refugee has some choice as to where he might properly claim asylum. The main touchstones by which exclusion from protection may be judged are the length of stay in the intermediate country, the reasons for delaying there and whether or not the refugee sought or found protection in law or in fact from the persecution from which they were seeking to escape.
Information from Immigration Enforcement (IE) – Criminal and Financial Investigation (CFI) unit
The CPS is reliant upon the Immigration Authorities for information relevant to an assessment of whether a defence under section 31 may apply. SXH v CPS [2013] EWHC 71 (QB) confirmed that it is “rational and proportionate that the CPS should depend upon the relevant agencies and departments to keep them informed” [85].
In all cases in which a section 31 defence may apply, the information relevant to an assessment should be provided as early as possible prior to charge and should include:
- Any credible evidence that the suspect has a section 31 defence available to them. This should cover all the elements of the defence set out above, including whether they are a refugee and the outcome of any application for asylum.
- If the CFI officer is of the view that the suspect is not entitled to the protection afforded by the section 31 defence, an explanation should be provided on the MG3 for that view, with any supporting information.
Refugee Status determined by the Home Office
If a suspect is a refugee and the Home Office determines that the other conditions in the section 31(1) and (2) criteria are met, no charges should be brought.
Where CFI submit a case for charging advice on the basis that the section 31(1) and (2) conditions have not been met, prosecutors must carefully consider the evidence submitted. Pursuant to paragraph 4.6 of the Code for Crown Prosecutors, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
If the suspect is not a refugee, the defence is not available, regardless of whether they fulfil the other conditions. It will be a matter for IE to consider deportation/removal and/or refer the case to the CPS for a charging decision.
In accordance with paragraph 3.6 of the Code, prosecutors have a duty of continuing review and must take account of any change in circumstances, such as any further information that comes to light regarding the suspect’s refugee status and asylum claim.
Refugee Status yet to be determined
Where a suspect's refugee status is yet to be determined or is the subject of an appeal to the Immigration Appellate Authority, it would normally be appropriate to await the outcome of the asylum proceedings before making a decision on charge, if consideration is being given to charging one of the section 31(3) listed offences. This will usually be the case where CFI indicates that a decision will be made about a suspect’s refugee status within a reasonable amount of time.
However, in some cases refugee status can take several years to determine, and it is advisable that liaison takes place with the case officer and the Home Office to ascertain when a decision will be reached, as this may impact on the decision to charge.
An undetermined asylum application is not a barrier to prosecution and prosecutors should consider all the circumstances of the case in deciding whether to await the outcome of the asylum application or to proceed to charge. Prosecutors should have sight of the suspect’s screening interview and Immigration Enforcement reports.
The following factors, for example, may be relevant:- A time limit in which the offence must be charged, which might expire before the asylum determination
- A risk of the suspect absconding pending the asylum determination
- The suspect has already caused delay by, for example, providing multiple contradictory accounts, a period of absconding, or the deliberate destruction of identity documents to hinder enquiries into their country of origin
In cases where the prosecution accepts that the suspect satisfies all the other conditions in sections 31(1) and (2), and the only issue is the suspect’s refugee status, no offences listed in section 31(3) should be charged until the status is determined. No Further Action should be taken in these cases, but the suspect should be given a re-instatement warning, in the event that refugee status is not granted.
Trial
In the event that a suspect is charged prior to determination of their refugee status, at the earliest possible court hearing, and prior to trial, the officer in the case should be asked to provide a written update on the defendant's refugee status.
If the defendant claims to be a refugee and no determination has been made, the Crown's position should be that while not accepting the claim or making any concessions in respect of their refugee status, the Crown will not seek to establish that they are not a refugee for the purpose of the criminal trial. In such cases there will be no issue for the jury to decide and no need to explain the term: R v Makuwa [2006] EWCA Crim 175 [37].
The issue at trial, in terms of the statutory defence, will be insufficient evidence of compliance with one or more of the other conditions in sections 31(1) and (2). For example, the defendant may or may not be a refugee, but the prosecution can prove they did not come directly from the country of persecution, or there was an unreasonable delay before they presented himself to the UK authorities. The defence and the court should be provided with a copy of R v Makuwa, to ensure that all parties are aware of what facts give rise to a section 31 defence, the burden and standard of proof and how the jury should be directed.
Appeals based on section 31
There have been a number of appeals based on an accused’s representative’s failure to advise them about the availability of the section 31 defence: see Leveson LJ’s comments in R v Mateta [24] and R v AM and Others [2010] EWCA Crim 2400 [10, 56] on the obligations of defence representatives.
Prosecutors should therefore carefully consider whether accounts given by asylum seekers could give rise to a defence, so as to minimise the risk of successful appeals based on the appellant’s failure to properly put forward a section 31 defence at trial. If a defence is likely to be raised, the CFI officer in the case should be requested to obtain evidence on the refugee status and asylum claim: see the sections above on determining a refugee’s status.
2. Statutory defences to the offences under section 2 Asylum and Immigration (Treatment of Claimants etc.) Act 2004
Section 2 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 creates two offences of not having an immigration document at a leave or asylum interview, relating to the person and any dependent children: see the Tables of Immigration Offences in Annex 1 below.
Sections 2(4) and 2(5) of the Act contain the main statutory defences to these two offences.
The Act does not define ‘reasonable excuse’ but section 2(7) excludes deliberate destruction or disposal from amounting to a reasonable excuse for non-possession at interview, unless it was beyond the control of the entrant or for a reasonable cause. Reasonable cause does not include delaying the handling or resolution of a claim or application, increasing its chances of success, or complying with the instructions or advice of a facilitator (agent), unless it is unreasonable to expect non-compliance with the instructions or advice.
The CPS is reliant upon Immigration Enforcement for information relevant to an assessment of whether a section 2 defence might apply. In cases where a suspect makes an assertion that an agent told him to destroy or hand over their passport, this should be scrutinised by investigators.
Interpretation of the section 2 defences
R v Navabi and Embaye [2005] EWCA Crim 2865 confirms that the burden of proving the defence is on the defendant and it is a legal burden i.e. on the balance of probabilities [29-30].
In Thet v DPP [2006] EWHC 2701 (Admin) the court clarified that the document referred to in subsections (3) and (6) is a genuine document. Therefore, if the person enters the UK on a false passport but fails to produce it at interview, it is a reasonable excuse for not providing a document under section 2(6)(b) that it was impossible for them to obtain a genuine passport in their country of origin.
In R v Mohammed and Osman [2007] EWCA Crim 2332 the court held that the defence applies if:
The person is unable to obtain a genuine travel document because of the political situation or lack of issuing facilities in the country of origin.
The genuine travel document is stolen or destroyed en route, or in the UK, through no fault of the applicant.
Refugee cases where the section 2 defence does not apply
The court in R v Navabi confirmed that although the offence created by section 2 falls within the ambit of Article 31 of the Refugee Convention, neither Article 31 nor section 31 of the Immigration and Asylum Act 1999 can provide a defence to a section 2 charge, as Parliament had not fully incorporated Article 31 into domestic law.
In refugee cases where the section 2 defences do not apply, prosecutors should apply the approach to charging decisions set out in the section on the Public Interest below. This will ensure that the purposive and humanitarian aims of the Refugee Convention are borne in mind when considering the public interest.
3. Section 45 Modern Slavery Act 2015
Section 45 of the Modern Slavery Act 2015 provides a defence for victims of slavery or trafficking who are compelled to commit criminal offences.
The defence applies to all offences in the Tables of Immigration Offences in Annex 1 below, including the new offences, save for the offences under section 25 of the Immigration Act 1971 (Assisting unlawful Immigration) and section 32 of the Offences Against the Person Act 1861 (endangering safety of railway passengers).
4. Statutory defences / exclusions to the facilitation offences (s25, s25A) under sections 25BA and 25BB
NABA introduced a new exclusion and two defences into the 1971 Act at sections 25BA and 25BB.
The exclusion means that a person or organisation does not commit an offence of facilitation if the act is done by, on behalf of, or co-ordinated by Her Majesty’s Coastguard or an overseas equivalent. This provides protection not only for organisations such as the Royal National Lifeboat Institution (RNLI), but individual seafarers who respond to mayday relays.
These defences to the offences of facilitating illegal entry or the entry of asylum-seekers apply in circumstances where: (1) a person rescues another person at sea, or (2) a ship’s master carries a stowaway into the UK or a person on board a ship assists a stowaway for humanitarian reasons.
Jurisdiction for offences committed in UK territorial waters
Where an offence is wholly or partly committed at sea, prosecutors should consider the question of jurisdiction.
Under the Territorial Waters Jurisdiction Act 1878 (‘the 1878 Act’), UK territorial waters extend 12 miles out to sea; Territorial Sea (Baselines) Order 2014 (SI 2014 No. 1353); Territorial Sea Act 1987.
At common law, the courts of England and Wales have jurisdiction to try a crime where a substantial measure of the activities constituting the crime take place within the jurisdiction, save where it can seriously be argued on a reasonable view that the offences should be dealt with by another country: Smith (No. 4) [2004] EWCA Crim 631. Thus, there is jurisdiction to prosecute offences committed outside England and Wales where nonetheless the final element or a substantial measure of the activities were within the territory. The substantive offence contrary to section 24, for instance, is completed upon arrival or entry in England or Wales and therefore there is jurisdiction to try the offence even if other elements of the offence were committed outside England or Wales. There may also be jurisdiction to try an attempt to commit a section 24 offence even where the conduct was outside the jurisdiction. This is because the substantial measure of the activities lies in the fact the offence was intended to be committed in England and Wales. This may arise where interdiction has taken place outside of UK territorial waters. For example, where boats are interdicted within the search and rescue zone, which is in international waters, rather than waiting for the boat to enter UK territorial waters.
The Merchant Shipping Act 1995 provides jurisdiction in respect of offences committed on ships. However, that legislation covers offences committed at sea either by UK nationals on ‘foreign’ registered ships or committed by ‘foreign’ nationals on UK ships (which would include offences committed e.g. on UKBF or RNLI boats). This would be unlikely to apply in immigration cases involving non-British nationals using boats.
The 1878 Act grants jurisdiction of the Admiralty over all offences “punishable on indictment” committed in UK territorial waters. This is the case whether or not the suspect is a British subject or where the ship is registered. “Punishable on indictment” relates to any indictable offence: either-way and indictable-only offences.
Section 46 of the Senior Courts Act 1981 confers jurisdiction for criminal proceedings on indictment from the Admiralty to the Crown Court. For either-way offences dealt with summarily, section 2 of the Magistrates’ Court Act 1980 gives jurisdiction to the magistrates’ courts in respect of all either-way offences. Thus, either-way offences committed in UK territorial waters can be dealt with either in the magistrates’ or Crown court in the usual way, subject to consent for prosecution being obtained as set out below.
Accordingly, prosecutors should be aware that there does not appear to be a statutory basis for any court in England and Wales to have jurisdiction over summary offences committed by non-UK nationals on board non-UK vessels in UK territorial waters.
Conspiracy
A conspiracy may involve the commission of an act by one or more of the parties, or the happening of an event, in a place outside England and Wales. This situation is covered by section 1A of the Criminal Law Act 1977 which provides that where (a) that act or event would be an offence by the law of that place and (b) it would also be an offence here (but for the fact that it takes place outside the jurisdiction), then a person in England and Wales who becomes a party to the agreement or, being a party, does anything in pursuance of the agreement (even before its formation) can be charged with conspiracy contrary to section 1(1) of the Criminal Law Act 1977. Note, however, prior consent of the Attorney General is required to prosecute offences to which section 1A applies.
For further guidance on obtaining the consent of the Law Officers see prosecution guidance on Consents to Prosecute.
Consent to prosecution for Admiralty offences
Prosecutors should be aware of the procedural requirements for consent to prosecute in respect of some Admiralty offences. Section 3 of the 1878 Act requires that prosecutors obtain consent from a Secretary of State before a prosecution can be instituted for an offence within the jurisdiction of the Admiralty where the defendant is not a UK citizen. This applies to indictable-only or either-way offences committed in UK territorial waters, including under the Criminal Attempts Act 1981 and the Offences Against the Person Act 1861. However, there is no requirement to obtain consent for any offences within Part III of the Immigration Act 1971; see section 28(2A) of the 1971 Act. This previously only applied to section 25 or 25A facilitation offences, but on 24 August 2022 section 28(2A) of the Immigration Act 1971 was amended to include all offences within Part III, which includes illegal entry or arrival offences and attempts.
Prosecutors should follow the process set out in the legal guidance on Consents to Prosecute, including the guidance on the timing of consent. An application using the template in Annex 3 of that guidance should be prepared, setting out why the CPS conclude the Full Code Test is met. In completing Annex 3, the prosecutor should also address: the nationality of the defendant; and whether anything has been identified in the course of the investigation that would suggest there may be concerns on the part of any foreign government were this defendant to be prosecuted for the offence alleged. The application should be authorised by a CCP or DCCP. It should be sent to the Directorate of Legal Services, where possible putting them on notice in advance about the fact that an application is to be submitted and the timescale in which a decision is required. The Secretary of State should be asked to provide a signed certificate to the following effect:
I HEREBY CONSENT to the prosecution of (name) of (DOB/address) for an offence or offences contrary to the Immigration Act 1971, committed within the territorial waters of the United Kingdom, and certify that the institution of such proceedings is in my opinion expedient.
The Immigration (Offshore Worker Notification and Exemption from Control (Amendment)) Regulations 2023 came into effect on 12 April 2023. Regulations brings section 43 (working in UK waters: arrival and entry) of the NABA 2022, and Schedule 6 to that Act which clarifies the legal framework around the requirement that individuals working in UK waters need permission to do so. This applies for those in the fishing industry who may be working on boats in the territorial waters adjacent to the UK.
Public Interest considerations
General approach
When assessing whether a prosecution is required in the public interest, prosecutors must follow the approach set out in section 4 of the Code for Crown Prosecutors, in particular the factors listed in paragraph 4.14.
The following additional public interest factors may be relevant when making the decision to prosecute:
- Whether the removal of the offender (or overstayer) is a proportionate response.
- Whether the suspect may be willing to assist in the investigation or prosecution of others.
- The personal circumstances or characteristics of the suspect – for example, their age or the state of their physical or mental health, or other vulnerabilities. This information should be provided by Immigration Enforcement CFI. However, prosecutors can also consider information from other sources including the police, other investigators, the suspect or those acting on their behalf.
When assessing whether the public interest test is met, prosecutors should adopt the following approaches depending on the nature of the case.
1. Approach in cases involving refugees
The defence under section 31 of the Immigration and Asylum Act 1999 reflects the UK’s obligations under Article 31 of the Refugee Convention. This defence only applies to specific offences. Section 37(1) of NABA also sets out Parliament’s intention that there should be no immunity from penalty where protection could reasonably have been sought in a different country during the defendant’s journey.
In cases where there is no statutory defence, prosecutors should have regard to circumstances which are relevant to Article 31 of the Refugee Convention when considering the public interest stage. Pursuant to paragraph 2.10 of the Code for Crown Prosecutors, prosecutors must have regard to the obligations arising from international conventions.
Specifically, prosecutors should consider the factors listed below in relation to Article 31. This will ensure that the humanitarian aims of the Convention are appropriately taken into account when deciding whether or not to prosecute. For more information on determining the approach to be taken when determining whether a suspect is a refugee, see the section above.
Factors relating to Article 31 of the Refugee Convention
- Is a refugee within the meaning of the Convention: see Article 1
- Came directly from a territory where their life or freedom was threatened in the sense of Article 1
- Presented themselves without delay to the authorities
- Showed good cause for their illegal entry or presence
- Committed the offence(s) reasonably or necessarily in the course of flight from persecution or threatened persecution
The burden and standard of proof to be applied in considering these factors should be the same as would apply to a section 31 defence at trial: see the section on Statutory Defences above.
The presence of all of these factors will make it less likely that a prosecution is required. However, unlike statutory defences, they will not provide an automatic bar to prosecution.
In all cases where the suspect is a refugee and the public interest test is applied, prosecutors must outline their approach to Article 31, including the reasons for their decision on the public interest, in their case review.
For a structured approach to assessing the merits of a section 31 defence, see para 9(4) of R v Dastjerdi [2011] EWCA Crim 365 (applied in R v PK [2017] EWCA Crim 486 and R v Idahosa [2019] EWCA Crim 1953).
The Article 31 factors will need to be weighed with any other factors identified in the case, to form an overall assessment of the public interest. The factors listed below under “Administrative removal” will be relevant. Additionally, the following factors should be considered:
- Evidence that the suspect was previously refused entry clearance or a prior application for an Electronic Travel Authorisation (ETA) to the UK.
- The offending compromised the genuine identity of another person, causing them loss, distress, or inconvenience (obtaining leave by deception / entering without leave through fraud).
- Evidence of provable involvement with an organised crime group behind the criminality.
Relevant public interest factors
The following public interest factors would be considered relevant when making the decision to prosecute:
- A likely sentence of less than 12 months’ imprisonment
- Where no aggravating factors in favour of prosecution would apply
- Whether, in the absence of other aggravating factors, the offender (or overstayer) might be dealt with more judiciously by removal
- Whether the suspect may be willing to assist in the investigation or prosecution of others (in accordance with the Serious Organised Crime & Police Act 2005), and who would need to remain in the UK for this purpose
- Any other issue arising from the Code for Crown Prosecutors. In particular, under paragraphs 4.14(b) and (d), the personal circumstances or characteristics of the suspect – for example, their age or the state of their physical or mental health, or other vulnerabilities – are factors which may mean it is less likely that a prosecution is required. This information should be provided by Immigration Enforcement CFI. However, prosecutors can also consider information from other sources including the police, other investigators, the suspect or those acting on their behalf.
Section 24 illegal arrival and entry offences
Factors tending in favour of prosecution (aggravating factors)
- The level of culpability involved in securing illegal entry (this might include other relevant offences committed alongside immigration offences). When an individual pilots a small boat, but there is insufficient evidence to prove a facilitation offence, culpability is likely to be higher as their actions will have made at least some contribution to the passage of others, in addition to directly contributing to their own illegal arrival or attempt.
- Offenders who are in breach of a Deportation Order and those who are repeat offenders who have previously been removed.
- Offenders who are in breach of a decision or order to exclude them from the UK or to ban them from re-entry for a specified period.
- Where the suspect has previous convictions or has committed other offences in addition to the immigration offending.
- A potentially substantial confiscation order and the likelihood of timely enforcement
- 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.
Evidence of concealment or evasion of identity including through document destruction, disposal of a mobile phone or other device, status in the UK, or assisting the pilot to conceal their identity during evidence capture by drones. - Evidence of money flows or financial advantage / gain or benefit.
- Evidence of repeated attempts to enter the UK illegally.
- Evidence of document destruction (where not charged as a separate offence).
- Evidence that the suspect could have sought asylum in a safe country before beginning the final leg of their journey.
- Evidence that the suspect was previously refused entry clearance or a prior application for an Electronic Travel Authorisation (ETA) to the UK.
- The offending compromised the genuine identity of another person, causing them loss, distress, or inconvenience (obtaining leave by deception / entering without leave through fraud).
- Evidence of provable involvement with an organised crime group behind the criminality.
- The cumulative effect of a number of less egregious factors that on their own would not tend in favour of a prosecution.
In relation to the section 24 illegal arrival and entry offences, it may be that those refugees, or presumptive refugees, who commit criminal offences as a necessary part of their journey to the UK are not prosecuted, provided the conditions in section 31(1) (as interpreted in Asfaw) are met.
Where a claim for asylum has been made, factors in support of prosecution may be:
- Non-meritorious claims.
- Additional factual elements providing the context of the offence or particular circumstances of the unlawful arrival in the UK, indicative of higher culpability or higher seriousness of the offending.
- Factors relating to the suspect, whether relating to the suspect’s circumstances in their country of origin or to their journey, indicative of higher culpability.
Examples may include asylum seekers with a particular organisational role, such as the facilitation of the buying of the boat in Bani and others [2021] EWCA Crim 1958, or the different seriousness in conduct in a case like Mirahessari and Vahdani [2016] EWCA Crim 1733.
Section 25 / S25A Facilitation offences
Factors tending in favour of prosecution (aggravating factors)
- Where there is evidence that the suspect has greater involvement and a more significant role in planning or organising the facilitation of migrants and the offence is not an isolated incident.
- Where there is evidence of facilitation beyond the defendant having their hand on the tiller, such as piloting the vessel for gain (financial or otherwise), and/or arranging the journey or sourcing the boat.
- A higher level of culpability of migrants in boats or lorries, in particular between those who travel on RHIBs with the intention or expectation that they will be intercepted and those whose intention is to avoid immigration controls altogether through concealed entry.
- A higher level of culpability involved in securing or assisting the illegal entry of individuals or asylum-seekers to the UK or a member State in breach of immigration laws (this might include other offences committed alongside immigration offences).
- The offending compromised the genuine identity of another person, causing them loss, distress or inconvenience.
- Access to public services is obtained, which would not otherwise be available.
- The suspect’s actions caused harm to others, or placed other persons’ life, health or safety at risk (including those who rescue migrants at sea). Those facilitating migrants crossing the English Channel are likely to create a higher risk of such harm.
- Disruption to services, such as those relating to train services in the Channel Tunnel, or disruption to other shipping / vessels in the channel Economic loss, which may, for example, be linked to any disruption of services.
- The offending caused a significant investment of police or Immigration resources.
Factors tending against prosecution (mitigating factors)
- The absence of any gain (whether financial or otherwise).
- Where the evidence suggests that the suspect was acting to safeguard other passengers, it may be in the public interest to charge the lesser section 24 offence rather than section 25.
Article 31 does not necessarily apply to these offences in the same way as to the section 24 offence, as the Refugee Convention provides protection for refugees themselves, rather than those who assist them (whatever their motives may be).
However, if an asylum claim has been made by someone charged with a facilitation offence, prosecutors should consider their culpability in the facilitation offence.
In those circumstances, their actions may be closer to being “necessarily committed in the course of flight from persecution”, and therefore covered by Article 31.
The principles underpinning the Refugee Convention to which the UK is a signatory are relevant to the assessment of the public interest.
2. Approach in all non-refugee immigration cases
For those without a claim for protection, the Refugee Convention should have no bearing on the decision to charge or prosecute.
In some cases, it may not be in the public interest to prosecute suspects who have endured persecution but who are technically not refugees, because their persecution does not amount to a Convention reason.
Prosecutors should first consider whether the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by an alternative to prosecution. This applies to any case involving a non-refugee who is in the UK illegally, whether they are accused of an immigration or other type of offence. The alternatives available are:
- Administrative removal; or
- A Foreign National Offender Conditional Caution (FNOCC).
When considering these alternatives, prosecutors will have regard to the fact that there is a substantial cost to the public when a foreign national offender, who needs to be managed in the community or kept in immigration detention, remains in the UK. See paragraph 4.14(f) of the Code: prosecutions should be a proportionate response.
Administrative removal
The person in question must agree to administrative removal. However, persons who are suspected of committing a section 2 offence (not having a travel document at a leave or asylum interview) or an offence which may attract a defence under section 31 of the Immigration and Asylum Act 1999, are likely to be seeking leave to remain or asylum. Accordingly, it is not likely that they would agree to administrative removal. It will be for the Home Office to determine whether administrative removal – rather than a prosecution – is the most appropriate action. Additionally, if a person is a genuine refugee, they should not be administratively removed.
The factors relevant when deciding whether administrative removal is in the public interest are as above under The Public Interest: General Approach. An additional factor is a likely sentence of less than 12 months’ imprisonment.
Foreign National Offender Conditional Caution (FNOCC)
If administrative removal is not considered appropriate, in cases (including indictable only cases) where the likely sentence would be less than two years’ imprisonment, consideration should be given to offering the suspect a conditional caution with foreign offender conditions.
For more detailed information, refer to the section on FNOCCs below.
Administrative removal and FNOCC not appropriate
If neither administrative removal nor a FNOCC is considered appropriate, prosecutors should apply the Code, including consideration of the questions at paragraph 4.12. In most cases, it is likely that a prosecution will be in the public interest.
3. Approach in human trafficking and slavery cases
If it comes to the notice of the prosecutor that the suspect may have committed an immigration offence whilst in a coerced situation and may be a victim of human trafficking or slavery, the investigating officer should be asked to make further enquiries and refer the suspect through the National Referral Mechanism.
When making a decision on whether it is in public interest to prosecute such suspects, prosecutors should follow the approach in the prosecution guidance on Modern Slavery and human trafficking: offences and defences, including the section 45 defence.
Foreign National Offender Conditional Caution
The purpose of the Foreign National Offender Conditional Caution (FNOCC) is to bring about the offender’s departure from the UK and to ensure that return does not occur for a specified period of time. These conditions must be imposed in every case.
The offender may also be required to:
- Report regularly to an immigration office, reporting centre, police station or other similar place, pending removal.
- Obtain or assist authorities in obtaining a valid national travel document.
- Comply with removal directions within a set time period (usually 16 weeks) and any lawful directions given to effect departure.
- Not to return to the UK within a specified period of time, normally 5 years as set out in the Immigration Rules, although in exceptional circumstances a period of 10 years may be specified.
If the FNO does not comply with the conditions set, they can be prosecuted for the original offence.
A FNOCC may only be offered to a foreign offender having no leave to enter or remain in the UK, and in respect of whom there is power to enforce departure.
FNOCCs may be used in cases that would ordinarily result in the imposition of imprisonment following conviction, where the sentence likely to be imposed for the offence under consideration would be less than two years imprisonment. They should only be used where it will be practicable to remove the person within a reasonable period of time.FNOCCs cannot be offered where the offender makes, or has, an outstanding asylum or human rights claim to remain in the UK, or where the offender admits to committing a document or identify fraud offence in order to make a claim for asylum, or where the offender may be a trafficked victim. This does not prevent a FNOCC being offered where the asylum or human rights claim has been withdrawn or refused and any appeal against refusal has been finally determined.
A FNOCC can still be issued following charge if, following a review, the prosecutor considers the case might be disposed of more appropriately in this way. If so, prosecutors should engage with the defence before the first court hearing, to determine whether they agree. Once the FNOCC is administered, the case would be discontinued.
See also the section on the Public Interest above.
Sentencing
For facilitation offences, the leading case is R v Le and Stark [1999] 1 Cr App R (S) 422, which related to the original section 25 offence in force, which had a maximum penalty of 7 years’ imprisonment at the time of the decision, but remains good authority:
- The most appropriate penalty for all but the most minor offences of this nature is custody: the offence very often requires a deterrent sentence
- Aggravating features include: repeat offending; commission for financial gain; facilitation for strangers rather than family members; conspiracies where the offence is committed over a period of time; a high degree of planning, organisation and sophistication; the number of illegal entrants involved; and the level of involvement of the offender
In Attorney General's References (Nos 49 and 50 of 2015) (R v Howard; R v Bakht) [2015] EWCA Crim 1402 the court listed the following non-exhaustive factors as relevant to a case of conspiracy to contravene section 25:
- Whether the offence is isolated or repeated
- The duration of offending
- Whether the offender had previous similar convictions
- Whether the offender's motivation was commercial or humanitarian
- The number of individuals involved in the breach of immigration law
- Whether they were strangers or family
- The degree of organisation involved
- Whether the offender recruited others
- The offender's role
- Whether the offender's conduct involved exploitation of or pressure put upon others
The above guidance applies equally to those facilitating others in boats as well as vehicles. However, offences of facilitation by boat are also aggravated by the high risk to life inherent in this method of entry, caused by the actions of those organising the crossings and piloting the vessels. Different levels of responsibility and personal mitigation for the crossings will generally go to the issue of sentence rather than the decision to prosecute.
Ancillary Orders
Deportation
Procedures in relation to deportation are dealt with under the prosecution guidance on Sentencing - Ancillary Orders. Prosecutors should be fully familiar with these procedures, including their role in identifying and drawing the court’s attention to defendants eligible for deportation.
Forfeiture
Section 25C of the Immigration Act 1971 provides a power for the forfeiture of vehicles, ships or aircraft used in the commission of the offences under sections 25 and 25A of the Immigration Act 1971.
For other offences, the power to forfeit items used in the commission of a crime under sections 152-155 of the Sentencing Act 2020 (which applies to all convictions on or after 1 December 2020) should be considered.
Disqualification
If an offender used their vehicle to facilitate immigration crimes, an application may be made for an order to disqualify them from holding or obtaining a driving licence under sections 162-170 of the Sentencing Act 2020.
n exception to the hearsay rule: R v Patel [1981] 3 All ER 94). The HO official should give evidence as to how the list was compiled and confirm its accuracy: DPP v Leigh [2010] EWHC 345 (Admin).
Annex 1: Tables of Immigration Offences
The following table sets out the most commonly prosecuted immigration offences For Statutory Defences: see the Immigration legal guidance.
False Documents
- Identity Documents Act 2010 (IDA) came into force 21 January 2011. For offences prior to that date, the Identity Cards Act 2006 (ICA) applies.
- Documentary offences will usually be prosecuted under the IDA rather than under the Forgery and Counterfeiting Act 1981 (FCA) or sections 24A or 26(1)(d) of the Immigration Act 1971 (IA): the IDA offences were introduced to combat the growing problem of identity fraud in organised crime and terrorism offences.
- Sections 4, 5 and 6 can be prosecuted if a “relevant event” occurred in England or Wales: Criminal Justice Act 1993 Part 1. This applies whether or not the defendant was in England or Wales at any material time, and whether or not they were a British citizen at any such time.
- s7 IDA defines what is meant by “identity document” in ss4-6 and includes an immigration document, a passport and a driving licence.
- Where asylum seekers arrive through the use of false documents (whether by boat, commercial airline or some other means), particular consideration will need to be given to such entrants. They will be prima facie guilty of both a s24 offence and a false document offence. However, s31 will only afford a defence to the false document offence. Thus, prosecutors will need to carefully consider each false document offence on its own facts and apply the Code test.
Possession of false identity documents etc. with improper intention - s4 Identity Documents Act 2010
The s4 offence is more serious than the s6 offence, requiring an improper intention (using the document for identity fraud). In many cases it will be possible to infer the intent from all the circumstances of the case.
In R v Goodings [2012] EWCA Crim 2586 the court emphasised the importance of the prosecution selecting the correct charge to reflect the true gravity of the conduct and not accepting a guilty plea to the lesser s6 offence, which does not properly reflect the evidence. The court also indicated that if a plea is taken to the lesser offence, it would be improper for the prosecution to put the case on the basis that the defendant had the intention (of impersonating another person), and he cannot be sentenced on that basis.
Sentencing
See below the case of R v Heng Pit under the offence Obtaining leave by deception.
Apparatus designed or adapted for the making of false identity documents - s5 Identity Documents Act 2010
Apparatus is defined in s9 of the Act.
Sentencing
See below the case of R v Heng Pit under the offence Obtaining leave by deception.
Possession of false identity documents etc. without reasonable excuse - s6 Identity Documents Act 2010
Part 1 of the Forgery and Counterfeiting Act 1981 - ss 1, 2, 3, 4 and 5.
Sections 1-5 contain a number of offences relating to making, copying and use of specified false documents.
Passports and similar identity documents do not apply, as these are now covered by offences under the IDA 2010.
For further guidance on these offences, and on offences of forgery of specific items, see the legal guidance on Forgery and Counterfeiting.
Sentencing
See below the case of R v Heng Pit under the offence Obtaining leave by deception.
Making etc. a false registration card - s26A Immigration Act 1971
This section creates a number of offences relating to the creation, possession and use of false or altered registration cards. These cards are issued by the Secretary of State in connection with a claim for asylum or support for former asylum seekers, temporarily unable to leave the UK.
Most cases will not be suitable for summary trial unless there are exceptional circumstances.
Possession of immigration stamp - s26B Immigration Act 1971
Subject Comment Category Either way Maximum Sentence 2 years' custody Statutory Defence S45 MSA Key points Cases where any element of organisation or financial gain is involved are likely to be suitable for trial on indictment. Failure to produce a passport
Entering the UK without a passport - s2 Asylum & Immigration (Treatment of Claimants etc) Act 2004
S2 creates two offences of not having an immigration document (usually a passport) at a leave or asylum interview, relating to the person and any dependant children.
Bei Bei Wang [2005] EWCA Crim 293 reiterates Home Office guidance:
- The reason the offences were created was to deal with the problem of the destruction of documents.
- This disables the authorities from establishing where an entrant came from, in order to increase the chances of success of a claim or application and/or to thwart removal.
- It is not the intention of the offence to penalise those who never had an immigration documentation during the course of their journey to the UK, or those who use a false immigration document (for example a false passport) to travel to the UK and who produce that document on arrival.
Charging: there is no requirement to await the outcome of an asylum application before making a charging decision:
- A person who is granted refugee status can still be guilty of the s2 offence. For instance, where the identity document is destroyed to delay the handling of the asylum application, even if the application is ultimately successful, the destruction could have made it more difficult to resolve.
- It was not the intention of Parliament when introducing this offence that a prosecution may be delayed while an administrative process is pursued. It was accepted that the defences available will protect a refugee who has an acceptable reason for being undocumented from being convicted.
Mode of trial: Factors to consider are:
- The Allocation Guideline – either way offences to be tried summarily unless the outcome would clearly be a sentence in excess of the court’s powers;
- Mitigating factors, such as the grant of refugee status.
- Overall maximum sentence.
Sentencing
In normal circumstances, a custodial sentence is inevitable - not least because
these offences have the real potential to undermine the whole system of immigration control: R v Bei Bei Wang [2005] EWCA Crim 293.Illegal entry / arrival and related offences (see Jurisdiction and Consent section in the legal guidance)
Entering in breach of a deportation order - s24(A1) Immigration Act 1971
12 months’ custody or a fine (on summary conviction)
5 years’ imprisonment or a fine (on indictment)
The person must knowingly enter the UK in breach of a deportation order.
Evidence is required from the Home Office confirming the deportation order.
Evidence is also required from the first responder and interview of the suspect as to how they have breached the order.
Entering the UK without Leave - s24(B1) Immigration Act 1971
12 months’ custody or a fine (on summary conviction)
4 years’ imprisonment or a fine (on indictment)
A person who requires leave, must knowingly enter the UK without the leave of an immigration officer.
It is for the defence to prove that the person had leave to enter the UK.
Remaining Beyond Time Limited by Leave (overstaying) - s24(C1) Immigration Act 1971
12 months’ custody or a fine (on summary conviction)
4 years’ imprisonment or a fine (on indictment)
A person who lawfully entered the UK with leave must either knowingly overstay their limited leave to remain beyond the time allowed; and/or fail to observe a conditions of the leave.
This requires proof of limited leave, the expiry date and knowledge of remaining beyond that date.
The evidence should include a statement from the Immigration Officer who admitted the defendant, setting out: the explanation to the defendant of the limits of leave and the fact that a notice in writing under s4 was given (usually a passport stamp).
If the Secretary of State extends leave, a letter will normally be sent to the person stating the new limit. This provides the requisite notice in writing and its admissibility is governed by s32(2) of the Act.
This is a continuing offence and can be charged as being committed on the day when the defendant first knew that the time limited by the leave had expired or, alternatively, as an offence continuing over a specified period. An offender may only be prosecuted once in respect of the same limited leave: s24(1A).For evidence of failing to observe a condition of leave, evidence is required of the notice in writing, the specific condition that is imposed, the breach of the condition and the defendant’s knowledge.
Arriving Without Entry Clearance - s24(D1) Immigration Act 1971
12 months’ custody or a fine (on summary conviction)
4 years’ imprisonment or a fine (on indictment)
A person who requires entry clearance, knowingly arrives in the UK without a valid entry clearance.
Evidence will include that there was no entry clearance issued by the Secretary of State.
It is for the defence to prove that the person had valid entry clearance.
Persons requiring entry clearance are those who require a visa to enter the UK or a certificate of entry.
Arriving without an Electronic Travel Authorisation (ETA) - s24(E1) Immigration Act 1971
12 months’ custody or a fine (on summary conviction)
4 years’ imprisonment or a fine (on indictment)
A person who requires a valid ETA for their journey to the UK and knowingly arrives without one commits the offence.
Evidence will include the fact that there was no ETA issued by the Secretary of State. An ETA will be required before arrival for all persons, except British and Irish citizens, who do not currently need a visa for short stays, or who do not already have an immigration status prior to travelling.
This provision will commence on a date after the new Immigration Rules come into force.
Failing to Observe a Condition of Leave - s24(1)(b) Immigration Act 1971
The following conditions can be imposed on a limited leave to remain:
- Restriction on employment.
- Restriction on studies.
- Residence.
- Not to have “recourse to public funds”.
- Register with the police.
- Report to an immigration officer or the Secretary of State.
Evidence is required of the notice in writing, the specific condition that is imposed, the breach of the condition and the defendant’s knowledge.
An automatic extension of leave also extends the conditions. However, if the leave expires, then the conditions lapse. Accordingly, there would be no offence of failing to observe a condition of leave but an offence of overstaying under s24(1)(b)(i) may be charged.
Note that those who are working in breach a restriction on employment would ordinarily be charged with the offence of “Illegal working” under section 24B of the 1971 Act: see the section on Employment offences.
Breach of Immigration bail conditions without reasonable excuse - s24(1)(h) Immigration Act 1971
If the person is on immigration bail and, without reasonable excuse, breaches a bail condition. This also includes a breach of electronic tagging.
Prosecutors will need to consider whether there is a reasonable excuse that the defendant breached bail sufficient to amount to a defence.
This is a “last resort” offence and only to be used in most aggravating circumstances where there is an extremely serious breach.
Evidence will be needed from the Home Office of bail conditions and how conditions were breached.
Prosecutors should consider whether there is a potential charge of criminal damage if an electronic tag has been destroyed or severely.
Obtaining leave by deception - s24A(1) Immigration Act 1971
NABA has made it an offence to obtain an Electronic Travel Authorisation (ETA) by deception. See s24(E1) above for more information on ETAs.
Documentary offences will usually be prosecuted under the Identity Documents Act 2010 (IDA), which has a higher maximum sentence of 10 years’ imprisonment: see above.
Mode of trial: under the Allocation Guideline, many cases will be suitable for summary trial, but some may be subsequently committed for sentence, as offences involving breaches of immigration control are considered to be serious and merit deterrent sentences: see AG Ref Nos 1 and 6 2008 [2008] EWCA Crim 677, which cites the sentencing case of R v Kolawole - see below.
This offence is broad in scope and can be applied to a number of situations, such as:
- Seeking to enter, as well as actually entering.
- Action taken to remain in the UK, such as preventing or deferring removal.
- Failed asylum seekers who seek asylum under a different identity.
Prosecutors must consider the facts carefully to determine which subsection applies, and draft the charge / indictment accordingly: see R v Boateng [2016] EWCA Crim 57 [12-15].
To prove deception, direct evidence from the immigration official who was deceived should ordinarily be obtained. Deception includes the silent presentation of a false passport.
There may also be an offence under s26(1)(c) of the 1971 Act of making a false statement, return or representation to an immigration official in the commission of any offence under s24 of the 1971 Act. See below for s26 offences.Sentencing
R v Heng Pit Ding [2010] EWCA Crim 1979 summarised a number of sentencing principles by reference to previous cases, including R v Ovieriakhi [2009] EWCA Crim 452 and R v Kolawole [2005] 2 Cr. App. R (S) 14:
It confirmed that the principles set out in R v Ali [2001] EWCA Crim 2874 still apply: passport cases provide useful guidance on sentence - it is a prevalent type of offence that has potential to undermine the system of immigration control, and will be treated very seriously; good character and personal mitigation are of very limited value and cases of this kind should be sentenced on a deterrent basis.
Offences under the Identity Cards Act 2006 (since replaced by offences under the Identity Documents Act 2010), are not more serious than the offences under s24A(1) of the 1971 Act (committed by use of a false document), which have a maximum of 2 years’ imprisonment. (The sentencing range of the 2006 Act offences - 10 years - had to cater for the worst possible case, such as the manufacture and distribution of false documents on a commercial basis, for significant gain.)
The sentence guidance in R v Kolawole, in relation to offences under the Forgery and Counterfeiting Act 1981, applies to the Identity Cards Act offences and to the 1971 Act offences: where a false passport is held or used for the purpose of defeating immigration control, the appropriate sentence on a guilty plea by a person of good character is in the range of 12-18 months.
The sentence could be less in cases where the passport is used not to defeat or avoid border control, but to obtain work or open a bank account, particularly if the offender is of good character and doing no more than seeking employment.
There is no distinction for sentencing purposes between offences committed under subsections 24A(1)(a) and 24A(1)(b).
Offences in connection with administration of the Immigration Acts - s26(1) Immigration Act 1971
S31 IAA applies to the offence under s26(1)(d), altering documents or possessing false documents.
The 3 years’ extended time limit for prosecutions provided for by section 28 applies to offences under subsections 26(1)(c) and (d).
The offence may be committed in a number of ways, by frustrating the work of immigration officers who conduct an examination on entry. For example:
- Failing to submit to examination, without reasonable excuse;
- Failing to produce information or documents, without reasonable excuse;
- Making a false statement to an immigration officer.
- Altering documents such as work permits, or possessing for use a document such as a passport, knowing or having reasonable cause to believe to be false.
- Failing to complete and produce a landing or embarkation card, without reasonable excuse;
- Obstructing an immigration officer or other person acting in execution of the Act, without reasonable excuse.
The legislation does not define “a reasonable excuse”. This will be a question of fact in the particular circumstances of each case. Evidence to contradict any claims of reasonable excuse should be obtained where possible.
The most common way the offence is committed is under section 26(1)(c), making a false statement etc. A charge under this subsection may be appropriate where, for instance, the suspect denies their real identity when asked, or a form is filled in with deliberately false information. For offences under this subsection:
- There must be a statement of representation. A simple failure to inform the immigration officer of material facts would not amount to an offence, since there is no duty of candour placed on the defendant.
- The false representation must be “material” in the sense it was likely to influence the decision to allow entry: R v SoS for the Home Department ex p Castro [1996] Imm AR 540.
The “other person” may include a police officer but not when the officer is investigating a suspected offence under the Act. The relevant falsehood has to be addressed to a person in the course of a specific procedure under the Act, whereby that person’s statutory function involved the obtaining or receipt of information relevant to the performance of that function: see R v Clarke [1985]
A.C. 1037.- Further examples of the “other person” are: entry clearance officers, Home Office officials and a detainee custody officer in a contracted out detention centre.
- Note that where leave to enter or remain is obtained by deception, a charge under s24A, Obtaining leave by deception, may be appropriate: see above.
The offence of Obstructing an immigration officer or other person acting in execution of the Act requires physical or other unlawful activity: R v Clarke. If the obstruction relates to a refusal to do something, there must be a duty under the Act to do what is requested by the immigration official, such as permitting
- inspection of luggage: Schedule 2, paragraph 4 of the Act.
Failure to cooperate with arrangements for removal - s35(3) Asylum and Immigration (Treatment of Claimants) Act 2004
The offence is intended to prevent people who, having exhausted all avenues of appeal following a failed asylum claim, avoid deportation by refusing to comply with arrangements for removal, such as signing the necessary documentation attending an interview or providing biometric information: see subsection (2).
Home Office guidance indicates that once a defendant raises an excuse, it is for the prosecution to disprove it or show that it is not reasonable to the criminal standard. The guidance gives examples of reasonable excuse: medical emergencies or transport problems.
In R v Masoud Tabnak [2007] EWCA Crim 380 the court found that a failure to co- operate based on a fear of persecution or serious harm could not amount to a reasonable excuse. This issue is one which will have already been determined by the Asylum and Immigration Tribunal, a specialist tribunal which is best placed to consider whether the defendant’s claim for asylum is genuine or not.
Assaulting an immigration officer - s22(1) UK Borders Act 2007
Subject Comment Category Summary Maximum Sentence 6 months' custody Statutory Defence S45 MSA Key points Under s23 an immigration officer may arrest a person without warrant if the officer reasonably suspects that the person has committed or is about to commit an offence under s22. Offences committed by going through the Channel Tunnel
Persons may try to enter the UK by walking through the Channel Tunnel from France to England. When this happens, the tunnel operators may shut down the power supply and suspend rail traffic, potentially causing disruption, delay and financial loss.
In these circumstances, it may be appropriate to charge an offence under s36 of the Malicious Damage Act 1861.
Obstructing engines or carriages on railways - s36 Malicious Damage Act 1861
In R v Mirahessari and Vahdani [2016] EWCA Crim 1733 the court made a number of observations in relation to the s36 offence:
- An unlawful act within the meaning of s36 may be committed by trespassing in the Channel Tunnel, which is itself a crime, contrary to byelaw 8(15) of the Channel Tunnel Byelaws 1994; alternatively, the civil tort of trespass is an unlawful act.
- There is no requirement to prove an intent to obstruct.
- The only mens rea that need be proved is that the defendant knew at the time that they were entering and walking through the Channel Tunnel.
- The word “obstruct” is not limited to a physical obstruction.
- Where the defendant’s action leads directly and naturally to the operators turning off the power or instructing train drivers not to enter the tunnel, the consequent interruption or suspension of rail traffic amounts to an obstruction of engines and carriages, which is caused by the defendant.
The court also rejected a submission that the applicants were denied the opportunity to rely on the defence for refugees under section 31 of the Immigration and Asylum Act 1999 by the preferring of a charge to which the defence did not apply: the conduct of the applicants, in entering the tunnel and causing considerable disruption and delay and significant financial loss, could not be said to be reasonable and necessary in the course of seeking refuge from
persecution.Placing wood etc. on railway, with intent to obstruct or overthrow any engine etc. - s35 Malicious Damage Act 1861
Subject Comment Category Indictable only Maximum Sentence Life in custody Statutory Defence S45 MSA Key points no information in this cell Placing wood etc. on a railway, with intent to endanger passengers - s32 Offences Against the Person Act 1861
Subject Comment Category Indictable only Maximum Sentence Life in custody Statutory Defence None Key points No information in this cell Doing or omitting anything to endanger passengers by railway - s34 Offences Against the Person Act 1861
Subject Comment Category Either way Maximum Sentence 2 years' in custody Statutory Defence S45 MSA Key points No information in this cell Channel Tunnel Byelaws 1994
Less serious offences under the Channel Tunnel Byelaws 1994 may apply, including:
- Under Part 5 headed “Restricted Areas”.
- Under Part 6 headed “Interference with Eurotunnel Operations and Property”.
- Under Part 7 headed “Compliance with Requirements of Constable or Eurotunnel”.
- Under Part 8 headed “Other Prohibited Activities.
Facilitation Offences
Assisting Unlawful Immigration to a Member State or to the UK (facilitation) - s25 Immigration Act 1971
The offence may be committed by, for example:
- Assisting illegal entry or arrival, for instance by smuggling someone in a vehicle or by providing false documents for presentation at a port.
- Harbouring an illegal entrant, a person who stays longer than allowed by their leave, or a person who fails to observe a condition of their leave.
- Assisting someone to remain by deception, by entering into a sham marriage or by procuring false documents.
The offence covers any act facilitating a breach of immigration law by a non-British/Irish citizen (including a breach of another Member State's immigration law).
The offence covers any actions done whether inside or outside the United Kingdom, regardless of the nationality of the perpetrator.
S25(2) defines “immigration law” as a law which has effect in any member State (not just the UK) and which controls, in respect of some or all persons who are not nationals of that State, entitlement to enter, transit or be in the State.
S25(2)(a) extends the offence to those who facilitate the entry or arrival of a non-British/Irish national to the UK or non-EU citizen to a European Union member State in breach of immigration laws.
For the meaning of “enter” in s25(2) see s11 of the Act and also R v Javaherifard and Miller [2005] EWCA Crim 3231, [12 & 46].
The defendant is entitled to know which particular law they are being accused of breaching. Prosecutors should therefore identify in the particulars of offence the immigration law said to have been breached. The law that is breached need not constitute a criminal offence (see below). It must be an immigration law within s25(2) of the Immigration Act 1971 (“the 1971 Act”). Therefore, subsections 1(2) and / or 3(1)(b) of the Act 1971 Act may be relied on separately or in combination, depending on the facts of the case, to specify the breach: as taken together these laws ‘determine’ (see R v Kapoor and others [2012] 2 Cr. App. R. 11) whether a person is lawfully in the UK: see R v Dhall [2013] EWCA Crim 1610 [20]. Where ss1 and / or 3 are relied on as the underlying immigration law, it is not necessary to prove that the person who is the subject (beneficiary) of the breach of immigration law (e.g. the person whose illegal entry was facilitated) himself/herself had the requisite mens rea to be guilty of an immigration offence: see R v Boateng [2016] EWCA Crim 57. In cases where a person (P) obtains leave to enter by deception (whether the deception is by P or a third party), P will be an illegal entrant (s33(1) defines “illegal entrant” as including a person “entering or seeking to enter by means which include deception by another person”). Since P’s entry was illegal, it can be argued that P did not enter the UK in accordance with s3 (although P entered with leave, that leave was illegally obtained). P being in the UK having entered will also be inconsistent with s1 (P will not have a right of abode). Therefore, the breach of immigration law is by virtue of ss1 and 3. In such “deceptive leave” cases, a separate note should be served with the indictment, to explain that there was a breach of ss1 and 3 by virtue of the fact that leave was only gained by deception (see also R v Adams [1996] Crim.L.R. 593 and R v Eyck [2000] 1 WLR 1389).
If the facts of the case suggest that the breach of immigration law should not be particularised by reliance on ss1 and / or 3, care must be taken to ensure that the immigration law relied on is an immigration law under the 1971 Act, which determines whether a person is lawfully or unlawfully either entering the UK, or in transit or being in the UK: see R v Kapoor.
For a non-exhaustive list of evidential requirements, see the main legal guidance.
Prosecutors should consider application of the new defences and exclusions under s25BA and 25BB, including for stowaways.
Prosecutors should also consider potential claims of asylum or humanitarian protection (e.g. modern slavery).
If the evidential test is met, it is likely to be in the public interest to prosecute. See the main legal guidance for a list of relevant public interest factors.
Interpretation of s25
R v Javaherifard and Miller [2005] EWCA Crim 3231 provides detailed guidance on what is likely and not likely to constitute facilitation of another person’s unlawful stay in the UK.
- An immigration law is a law which determines whether a person is lawfully or unlawfully entering, transiting or being in the UK. S2 of the Asylum and Immigration (Treatment of Claimants) Act 2004 (an offence of not having a passport at a leave or asylum interview) is not an “immigration law” for the purposes of section 25(2): it merely controls or regulates the entitlement to be in the UK and therefore cannot be relied upon as the immigration law which has been breached [28-39].
- The alleged breach of immigration law under s25(2) need not constitute a criminal offence [33], confirming R v Javaherifard and Miller [50].
- In cases of conspiracy to commit the s25 offence of facilitation, the prosecution must prove knowledge and intention by the defendants and not merely “reasonable cause for believing” that the act would facilitate the commission of a breach of immigration law, pursuant to the decision in R v Saik [2007] 1 AC 18.
R v Ali [2015] EWCA Crim 43 held that it is not necessary to prove that an actual breach of immigration law occurred [45], so an offence can be facilitated whether or not it is committed.
In R v Naillie [1993] AC 674, HL, decided under the precursor offence, it was held that:
- Entry was not to be equated with arrival or disembarkation. Those who disembarked without a right of entry were not automatically illegal entrants.
- An asylum seeker who claimed asylum while still within the designated area was not an illegal entrant, albeit he might have forged documents or had no documents at all.
However, R v Adams [1996] Crim LR 593 and R v Eyck [2000] 1 WLR 1389 clarify that the position is different from that in Naillie where the would-be entrant intends to and receives help to evade immigration controls altogether before arriving in the UK.
Sternaj & Sternaj v DPP [2011] EWHC 1094 (Admin): the statutory defence in s31 Immigration and Asylum Act 1999 did not apply where the appellants were registered asylum seekers who facilitated the entry of a young child (the son of one of the appellants) using another child’s passport [33]. However, the prosecution might question whether it was in the public interest to prosecute [32].
Sentencing
The leading case is R v Le and Stark [1999] 1 Cr. App. R. (S.) 422, which related to the original section 25 offence, which had a maximum penalty of 7 years’ imprisonment at the time of the decision:
- The most appropriate penalty for all but the most minor offences of this nature is custody: the offence very often requires a deterrent sentence.
- Aggravating features include: repeat offending; commission for financial gain; facilitation for strangers rather than family members; conspiracies where the offence is committed over a period of time; a high degree of planning, organisation and sophistication; the number of illegal entrants involved; and the level of involvement of the offender.
For examples of how R v Le has been applied in more recent cases, see: R v Shahi [2010] EWCA Crim 2480; R v Chocat [2010] EWCA Crim 1468; and R v Kvec [2008] EWCA Crim 594.
In AG’s References (Nos 49 & 50 of 2015) (R v Howard; R v Bakht) [2015] EWCA Crim 1402 the court listed the following non-exhaustive factors as relevant to a case of Conspiracy to contravene s25, referring to the case of AG’s Reference (No 28 of 2014) [2014] EWCA Crim 1723:
- Whether the offence is isolated or repeated.
- The duration of offending.
- Whether the offender had previous similar convictions.
- Whether the offender's motivation was commercial or humanitarian.
- The number of individuals involved in the breach of immigration law.
- Whether they were strangers or family.
- The degree of organisation involved.
- Whether the offender recruited others.
- The offender's role.
- Whether the offender's conduct involved exploitation of or pressure put upon others.
In R v Bani [2020] EWCA Crim 233, the Court of Appeal provided a useful summary of sentencing authorities, including the cases of R v Roman [2017] EWCA Crim 6 and R v Rotsias [2013] EWCA 2470, where following guilty pleas, 2-3 years’ imprisonment was found to be appropriate in facilitation cases where appellants were escorting illegal migrants into the country and receiving payment. At the time of these decisions, the maximum penalty was 14 years’ imprisonment.
Sham Marriages
A sham marriage is a marriage of convenience entered into with the intention of gaining immigration rights for one of the spouses. Whilst referred to as a sham marriage, the union itself is valid if it conforms to the legal requirements for marriage. However, entering into a sham marriage does not entitle migrants to a right to remain in the UK. Following the “marriage” the parties must apply for the right to remain.
Sham marriages typically occur when a foreign national marries a British or Irish citizen, or someone in the UK with pre-settled status under the EU Settlement Scheme, as a means of attempting to gain long-term residency and the right to work and claim benefits. An individual sham marriage is often part of a wider organised crime network which may arrange multiple sham marriages and carry out other criminal activity, including money laundering and identity fraud.
A range of offences might be disclosed in cases of sham marriage, dependant on the number and identity of the participants and the role they play. For example, those who arrange the ceremony and the participants at the wedding, including witnesses and the vicar conducting the ceremony, may be charged with assisting unlawful immigration (facilitation) and conspiracy to facilitate breach of immigration law.
Sentencing - Sham Marriages
R v Oliveira; R v Cina; R v Oramulu [2012] EWCA Crim 2279 is the leading sentencing case on sham marriages. The court indicated that the aggravating factors set out in R v Le and Stark (see above) apply to sham marriage cases, to which the following factors should be added:
- The recruitment of others to assist in the crime.
- Any measure of exploitation or pressure.
- A racket providing services to others for money: it will be necessary to look at the role of the defendant within the organisation.
- At the bottom of the range of offences involving sham marriages were cases of single bogus ceremonies entered into in circumstances which could carry a substantial degree of personal mitigation, such as where one party to the ceremony has been morally blackmailed into doing it.
- There is frequently no distinction to be made between a sham marriage case and a case of the provision of forged or falsified documents for the purposes of evasion of immigration control. The purpose of the marriage is, like the purpose of the forged document, to provide a bogus authentication for presence.
- A very large number of the ‘own marriage’ cases without organisation or facilitation of others may well fall into the very broad bracket around 18 months to three years.
Facilitating entry by asylum-seekers to the UK - s25A Immigration Act 1971
This is a "lifestyle offence" under Sch. 2 of the Proceeds of Crime Act 2002.
The offence is aimed at those who bring asylum seekers to the UK to enable them to claim asylum. It does not apply to persons acting on behalf of an organisation which aims to assist asylum-seekers, and does not charge for its services.
No element of smuggling is required to make out the offence; the asylum seekers do not need to be illegal entrants.
The offence covers any actions done whether inside or outside the UK, regardless of the nationality of the perpetrator.
This offence no longer requires evidence of financial gain as this was removed by the NABA. Prosecutors should consider application of the new defences and exclusions under s25BA and s25BB, including for stowaways.
Prosecutors should consider potential claims of asylum or humanitarian protection (s45 MSA).
All cases that were charged before the commencement of s25A (as amended by the NABA) will still need proof of evidence of direct financial gain. Where there are difficulties in obtaining evidence of direct (financial) gain to support an offence under s25A, prosecutors should consider whether there might be sufficient evidence to infer gain. For instance, the defendant’s expenditure or lifestyle may be inconsistent with his apparent earnings or receipt of benefit. In this regard, expenditure on travel and hotels as part of the offending may be relevant. If no gain can be inferred from the evidence, a charge under s25 may be appropriate.
If the evidential test is met, it is likely to be in the public interest to prosecute. See the main legal guidance for a list of relevant public interest factors.
Sentencing
The factors listed above in the leading sentencing cases in respect of s25 would appear to apply also to the s25A offence: see R v Le and Stark [1999] 1 Cr. App. R. (S.) 422 and AG’s References (Nos 49 & 50 of 2015) (R v Bakht) [2015] EWCA Crim 1402.
Assisting entry to the UK in breach of deportation or exclusion order - s25B(1) Immigration Act 1971
This provision was omitted following the UK’s exit from the EU. Transitional provisions can be found in the relevant regulations.
These are "lifestyle offences" under Sch. 2 of the Proceeds of Crime Act 2002.
The offences cover any actions done inside or outside the UK.
The offence under subsection (3) can apply in cases where the Secretary of State has made an order to exclude an individual from the UK on the grounds of public policy, public security or public health (other than a temporary exclusion order under s2 of the Counter-Terrorism and Security Act 2015).
Employment Offences
Knowingly employing adults subject to immigration control - s21 Immigration, Asylum and Nationality Act 2006
The Immigration, Asylum and Nationality Act 2006 (IANA) contains a civil penalty regime for employers under s15 IANA 2006, in addition to the offence under s21.
An employer of illegal immigrants can face three potential sanctions, depending on the how serious the employer’s actions are considered:
1. Civil penalties
Penalties of up to £20,000 per illegal worker may be imposed under s15 IANA.
This is the starting point for consideration and according to the Home Office should be used for all routine non-compliance with the law.
2. Criminal proceedings under s21 IANA
In some cases a civil penalty procedure is considered inadequate and the Civil Penalties Department may refer cases to the CPS for possible criminal proceedings.
This is likely to occur when it is apparent that the employer has deliberately and knowingly breached the law, shown a pattern of exploitative behaviour or evaded payment of penalties by closing and re-opening businesses in another identity.
For an offence under s21 to be committed, the employee must be disqualified from employment by reason of the employee's immigration status. S21(1B) defines disqualified persons.
The mens rea of “reasonable cause to believe”, inserted by s35 Immigration Act 2016, is intended to capture employers who deliberately fail to check if a worker has the right to work in the UK.
All case reviews should include consideration of the reasons for the authorities not adopting the penalty notice procedure. If the papers submitted by the police / immigration authorities contain no clear decision-making process, this should be questioned. Recorded reasons will make cases less susceptible to abuse of process arguments or judicial review.
3. Criminal proceedings under s25 Immigration Act 1971
An offence of Assisting unlawful immigration to a member state or to the UK (see section above on Facilitation offences) can be considered in serious cases, such as organised criminal activity to evade immigration rules.
Working illegally - s24B(1) Immigration Act 1971
The offence covers persons who work in breach of conditions attached to their permission to be in the UK, under s24 of the 1971 Act.
The normal course of action will be to remove illegal workers in preference to prosecution. Only where the illegal worker has refused to cooperate or has a serious record of abusing immigration laws and committed other offences, will Immigration Enforcement consider referral for prosecution.
The earnings of the illegal worker can also be seized under the Proceeds of Crime Act 2002. Following conviction, the prosecutor must consider whether to ask the court to commit the person to the Crown Court for confiscation proceedings.
The Code for Crown Prosecutors
The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.
Prosecution guidance
This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.
