Dinghies in the Channel – Illegal entrants and immigration offences

Relevant Law

There is much controversy in the media at the moment about migrants crossing the Channel in dinghies. In this article, we set out to explain some of the relevant law and clear up some misconceptions.

This article is intended to be a general commentary on the law. How the law applies in any given case will depend on the facts of that case, and you should seek legal advice if you are concerned by any of the matters we discuss.

Illegal entrants

The starting point is section 3(1) of the Immigration Act 1971, which states that:

There are, broadly speaking, four categories of person (in addition to British citizens) who are exempt from the requirement for leave:

1. Commonwealth citizens who have a proven right of abode;
2. persons arriving from Ireland or another part of the common travel area, in circumstances where leave is not required;
3. persons exempt from control, such as diplomats, crew members and others;
4. EU, EEA and Swiss nationals; and
5. overseas prisoners entering the UK to give evidence in court or assist a criminal investigation.

It is assumed for the purposes of this article that the people arriving in dinghies do not fall within any of the exempt categories.

Anyone who is not exempt requires entry clearance to come to the UK, either in the form of a visa or an entry certificate. Oversimplifying somewhat, the grant of entry clearance generally equates to the grant of leave to enter the UK.  Applicants must be outside the UK at the time of the application and the application must be made at a designated place, typically the relevant British embassy or consulate.

Section 11(1) of the Act provides that a person arriving by ship (which is defined broadly enough to include dinghies) shall not be deemed to have entered the UK unless and until he disembarks. Furthermore, if he disembarks at a port, he shall not be deemed to have entered the UK unless and until he leaves the area of the port designated for immigration checks.

Section 33(1) of the Act defines an illegal entrant as:

It seems probable that those crossing the Channel have not obtained entry clearance and are seeking to land on a quiet beach rather than at a designated port. It follows that they probably are illegal entrants as defined in the Act.

Criminal offences

Confusingly, a person can be correctly classified as an illegal entrant without being guilty of the offence of illegal entry. A migrant arriving on a dinghy is guilty of an offence under section 24 of the Act if he “knowingly enters the UK … without leave”. The prosecution must prove beyond reasonable doubt that the defendant knew he required leave. The offence is only committed if the migrant actually enters the UK i.e. not by those who are intercepted by the authorities before they reach land.

There are various other offences which may apply to immigrants and they are typically concerned with travelling with false identity documents or no documents at all, or gaining entry to the UK by deception.

Refugee status

In 1951, the UK became a signatory to the Convention Relating to the Status of Refugees. This landmark treaty initially protected only those fleeing events in Europe before 1 January 1951, but a Protocol signed in 1961 extended the Convention’s protection to anyone with a well-founded fear of persecution for reasons of “race, religion, nationality, membership of a particular social group or political opinion” who was outside his own country and unable to return.

Article 31 of the Convention states that:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

The potential for conflict between the domestic law as explained above and Article 31 of the Convention is obvious. Refugees often have no option but to travel with false papers or no papers at all, and they will typically find it difficult to apply for leave at the British embassy or consulate in their home country. They are therefore at risk of prosecution for a number of offences.

It is perhaps surprising, then, that the authorities did not begin to grapple with this conflict until the case of Adimi, R (on the application of) v Uxbridge Magistrates Court & Anor [1999] EWHC Admin 765. Simon Brown LJ, as he then was, described it as a “striking fact” that:

[U]ntil these challenges were brought, no arm of State, neither the Secretary of State, the DPP, nor anyone else, had apparently given the least thought to the United Kingdom’s obligations arising under Article 31. The Secretary of State’s stance is that the responsibility for prosecuting people found in possession of false passports lies not with him or the immigration service but rather with the police and the CPS. He neither encourages nor instigates such prosecutions. Generally speaking the immigration service is only involved insofar as an officer may be asked to express an opinion on the validity of particular travel papers. If a passenger claims asylum, then certainly the immigration service becomes involved in processing that claim. That, however, is treated as discrete from any criminal prosecution that may be brought for travelling on false documents. So far as the police and CPS are concerned, no consideration had ever been given to the immunity provided by Article 31. Until Mr Adimi’s counsel took the point in the Magistrates Court, no one involved in the criminal justice system ever addressed their mind to the problem. Plainly this is a most unsatisfactory state of affairs.

Expert Opinion

Drawing on expert academic opinion and the Convention’s preparatory materials, the court decided that Article 31 is to be broadly construed. In particular, its protection extends to those who:

1. claim asylum in good faith, even if their application is ultimately rejected;
2. have travelled through other safe countries on their way to the UK;
3. claim asylum within a short period of arriving in the UK, even if they do not claim it at immigration control.

The court concluded that the appropriate way to reconcile the domestic law with Article 31 was for the court to stay a prosecution as an abuse of process in circumstances where the offence was committed as part of a person’s quest for asylum.

Abuse of process is a doctrine developed by the courts to bring proceedings to a halt in cases where it is impossible for the defendant to have a fair trial or “it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case”. It is this second category of abuse of process that may be invoked by refugees. If a prosecution is brought and the court considers that the defendant is entitled to the protection of Article 31, the proceedings will be “stayed”, which means that they are brought to an end without any decision on the defendant’s guilt or innocence.

Simon Brown LJ expressed the “the earnest hope that decisions to prosecute, not least for offences under the general criminal law rather than under Part III of the Immigration Act, will be made only in the clearest of cases and where the offence itself appears manifestly unrelated to a genuine quest for asylum.”

The approach adopted by the Divisional Court in Adimi was subsequently approved by the House of Lords in the case of R v Asfaw [2008] UKHL 31.By this time, the government had amended domestic law in an attempt to make it compatible with Article 31. It sought to achieve this by the introduction of a statutory defence based on Article 31. This was enacted in the form of section 31 of the Immigration and Asylum Act 1999. Unfortunately, the government fluffed its lines. Not only was the scope of the defence narrower than the scope of Article 31’s protection, as explained in Adimi, but the defence does not apply to all immigration offences.  In particular, it does not apply to the offence of illegal entry, an omission described by Lord Bingham as “perplexing”.

The rather unsatisfactory position, therefore, is that the government has still not fully incorporated Article 31 into domestic law, and for those immigration offences to which the statutory defence does not apply, the defendant has to rely on a combination of prosecutorial discretion and the somewhat uncertain doctrine of abuse of process.

When deciding whether to prosecute, the CPS has to consider whether a prosecution is in the public interest. The importance of upholding the UK’s obligations under international law forms part of this test. Generally speaking the CPS will not prosecute if a migrant is entitled to the protection of Article 31 and committed the offences “reasonably or necessarily in the course of flight from persecution or threatened persecution”.

The Dublin III Regulation

The Dublin III Regulation is an EU regulation that determines how asylum claims are to be allocated among the EU’s member states. It will continue to apply to the UK until the end of the transition period on 31 December 2020. Contrary to what is often claimed, the regulation does not require refugees to claim asylum in the first safe country they enter. In fact, it imposes no obligations on refugees at all. It does create a hierarchy of factors which are to be taken into account when deciding in which member state an asylum claim should be processed. The factors towards the top of the hierarchy have to do with the refugee’s family connections. If and only if there are no other factors pointing towards a particular member state, the first member state entered by the refugee should be the one responsible for dealing with the claim for asylum.

Summary

It is likely that many of the people crossing the Channel in dinghies are illegal entrants, and some of them may commit one or more immigration offences. This may be so even if they are refugees, because of the UK government’s failure to align our domestic law with our obligations under Article 31 of the Convention. A person is entitled to the protection of Article 31 if they claim asylum in good faith within a short period of arriving in the UK. They are not deprived of that protection by having travelled through other safe countries on their way here.

In order to give effect to Article 31, the CPS will generally not prosecute a person who is entitled to its protection and who committed the offences “reasonably or necessarily in the course of flight from persecution or threatened persecution”. If such a prosecution is brought, the defendant will in some circumstances have a statutory defence, and in cases to which the statutory defence does not apply, the court may give effect to our obligations under international law by bringing the proceedings to a halt.