Kakaei, R. v

Section 25 of the Immigration Act 1971 may apply where a person facilitates an asylum-seeker’s breach or attempted breach of immigration law. Section 25A does not create an exclusive regime for asylum-seekers. Its requirement of gain does not prevent liability under section 25 where the facilitated person commits such a breach.

Whether passengers arriving by boat commit an offence of unlawful entry depends on how and where they are to arrive. A person who disembarks at a port and remains in an approved area while claiming asylum is deemed not to have entered under section 11. An erroneous pre-trial ruling which removes a defendant’s only viable defence can render guilty-plea convictions unsafe.

The appellant pleaded guilty at Canterbury Crown Court to two counts of assisting unlawful immigration, contrary to section 25(1) of the Immigration Act 1971. He had assisted in piloting small boats carrying migrants from France towards the United Kingdom. His case was that all aboard intended to surrender to border officials and claim asylum immediately.

Before trial, the judge ruled that the passengers would commit offences under section 24 because they had no documents. The appellant then pleaded guilty, having been advised that the remaining argument that his steering did not amount to facilitation was hopeless. He appealed against conviction after the prosecution accepted that the ruling was legally wrong, but disputed whether the pleas nevertheless made the convictions safe.

The central issues were the relationship between sections 25 and 25A, the effect of section 11 on entry by asylum-seekers, and the consequences of the erroneous ruling for convictions based on guilty pleas.

1. The appeal was allowed and the convictions were quashed. The judge’s ruling incorrectly treated arrival in United Kingdom waters without documents as necessarily amounting to an offence under section 24 of the Immigration Act 1971.

2. Sections 25 and 25A are not mutually exclusive. Section 25 applies if the facilitator assists a non-EU national’s breach or attempted breach of immigration law, whether or not that person is an asylum-seeker. Section 25A also covers facilitation, for gain, of an asylum-seeker’s arrival or entry where no breach of immigration law by that person is required.

3. The court treated the wider observation in paragraph 38 of R v Kapoor [2012] EWCA Crim 435 as obiter and declined to follow it. The court preferred R v Bina [2014] EWCA Crim 1444, whose rejection of an asylum-seeker limitation on section 25 was necessary to its decision. Both cases were correct in result. Their apparent conflict arose only from Kapoor’s unnecessary wider observation.

4. Under section 11, a person arriving by ship does not enter until disembarkation. If the person disembarks at a port and remains in an approved area, entry is further deemed not to occur. Accordingly, whether the passengers’ intended arrival would breach section 24 depended on evidence about their intended destination and method of arrival. Those were matters for a jury, not factual findings available on the pre-trial application.

5. The appellant’s earlier conviction under section 24 was evidence of his unlawful entry on the second journey, subject to proof to the contrary. It did not conclusively establish the guilt of the other passengers or remove the available defences. The judge’s ruling withdrew the two viable defences concerning intended arrival and the appellant’s knowledge.

6. Applying R v Asiedu [2015] EWCA Crim 714 and R v Chalkley [1997] EWCA Crim 3416, an erroneous legal ruling which leaves no viable defence may make a subsequent guilty-plea conviction unsafe. The theoretical de minimis argument left open by the judge was hopeless. The appellant was entitled to have the factual issues underlying his viable defences determined by a jury.

7. A retrial was subsequently directed. The appellant was acquitted at Canterbury Crown Court on 13 May 2021.

• Court of Appeal (Criminal Division) — allowed the appeal against conviction and quashed the convictions: [2021] EWCA Crim 503. A retrial was subsequently ordered and resulted in an acquittal on 13 May 2021.
• Crown Court at Canterbury — the trial judge made a pre-trial legal ruling on 4 September 2020. Following that ruling, the appellant pleaded guilty to two section 25 counts and was sentenced to concurrent terms of 26 months’ imprisonment on 21 January 2021.