SAMYAR AHMADII BANI v THE CROWN

For an offence under section 25 of the Immigration Act 1971, the prosecution must prove that the facilitator knew, or had reasonable cause to believe, that the act assisted an unlawful entry or attempted entry. Under section 11, arrival in territorial waters, or interception and lawful conveyance into the United Kingdom, does not necessarily constitute entry. In small-boat cases, the intended method of entry must generally be left to the jury. A conditional plan may suffice where unlawful landing was intended if lawful entry proved unavailable. A person whose sole planned method was lawful interception does not commit the offence. A guilty plea may be unsafe where systemic legal errors deprived the defendant of a fair opportunity to decide whether to plead guilty.

Four appellants were prosecuted at Canterbury Crown Court for assisting unlawful immigration under section 25 of the Immigration Act 1971. Three were convicted after jury trials; the fourth pleaded guilty. Each had piloted or helped pilot a rigid-hulled inflatable boat from France towards the United Kingdom. The boats were intercepted at sea, and the occupants were brought into the United Kingdom by Border Force before claiming asylum.

The appeals followed the decision in R v Kakaei [2021] EWCA Crim 503. The central issues were the mental element of facilitation, the significance of the statutory definition of entry, the directions required in small-boat cases, the effect of defects in the indictment and expert evidence, and whether the guilty plea could safely stand.

Appeals and convictions. Leave to appeal was granted in all four cases. The appeals of Bani, Al Anzi and Zadeh were allowed and their convictions quashed. Rakei’s conviction was found unsafe, but its formal quashing was deferred because the prosecution sought a retrial.

1. Section 25 of the Immigration Act 1971, read with sections 3 and 11, required proof that, when the facilitating act was done, the facilitator knew or had reasonable cause to believe that the act assisted a breach or attempted breach of immigration law. The offence was complete when the facilitating act was done, even though the eventual outcome of the crossing was unknown.
2. Under section 11, a person arriving by ship or floating structure does not enter merely by reaching United Kingdom waters. Disembarkation into an approved port area, detention, immigration bail or lawful conveyance following interception may prevent an entry without leave. The prosecution therefore had to prove the intended method of entry.
3. A conditional plan could establish the necessary mental element. If migrants intended to be intercepted but also intended to land unlawfully if interception did not occur, the journey could constitute an attempted breach which the facilitator assisted. If lawful interception was the only planned method of entry, no offence was committed unless the facilitator knew or had reasonable cause to believe that interception would not be possible. The issue had to be left to the jury in small-boat cases unless properly conceded.
4. The decision in R v Kakaei [2021] EWCA Crim 503 did not reverse the burden of proof and did not change the law. The prosecution retained the burden of proving the relevant intention. The failure to particularise the immigration law in the indictments ought to have been avoided, but had no separate force apart from the underlying failure to analyse and present the correct issue.
5. Expert evidence concerning cultural context could be admissible where it was relevant to a matter in dispute and beyond the ordinary collective experience of the jury. The proposed fresh evidence in Rakei’s case was declined because it had been available at trial and did not assist in deciding whether the conviction was unsafe.
6. The court followed the guilty-plea approach in R v Boal [1992] 1 QB 591, but held that the unusual, systemic misunderstanding of the law justified a different approach. Zadeh had not had a fair opportunity to decide whether to plead guilty with a proper understanding of the charge and the available defence. The convictions were therefore unsafe.

• Court of Appeal (Criminal Division): In [2021] EWCA Crim 1958, leave to appeal was granted in all four cases. Three convictions were quashed. The fourth was held unsafe but not yet formally quashed.
• Crown Court at Canterbury: Bani, Al Anzi and Rakei were convicted after jury trials. Zadeh pleaded guilty. The convictions arose from prosecutions under section 25 of the Immigration Act 1971.