R v Altaib Alfatih Mobarak & Ors

A conviction for facilitating unlawful entry under Immigration Act 1971, section 25 is unsafe where the jury has not properly been required to decide whether the act facilitated unlawful entry, rather than mere arrival in the United Kingdom. The distinction is material under section 11.

Where an earlier guilty plea to a related summary-only offence may have resulted from the same legal error, a challenge by judicial review should not be determined summarily without considering the distinct public-law test applicable to a Magistrates’ Court conviction.

Seven defendants sought leave to appeal convictions under section 25 of the Immigration Act 1971 for facilitating the unlawful entry into the United Kingdom of persons who were not citizens of the United Kingdom or the European Union.

The appeals raised the same issue considered in R v Kakaei [2021] EWCA 503 and R v Bani and Others [2021] EWCA Crim 1958. The prosecution accepted that the present cases were legally indistinguishable from those earlier cases.

Nima Bari had also pleaded guilty in the Magistrates’ Court to the summary-only offence under section 24. The court, sitting as a Divisional Court, was asked to quash that conviction summarily by judicial review. The central procedural issue was whether the distinct judicial-review test should first be addressed in properly constituted proceedings.

1. The court granted leave in all seven cases and quashed the section 25 convictions. The earlier decisions in R v Kakaei [2021] EWCA 503 and R v Bani and Others [2021] EWCA Crim 1958 had settled the relevant legal issue. In each trial, the jury had not properly been asked to decide whether the act of facilitation related to unlawful entry, as distinct from arrival in the United Kingdom. That distinction mattered because of section 11 of the Immigration Act 1971.

2. The prosecution’s concession was correct but did not bind the court. The court independently concluded that the convictions were unsafe because the trials were, in all material respects, indistinguishable from the trials in which convictions had already been quashed.

3. The sentence appeals consequently fell away. The prosecution did not seek retrials, so both the appeal proceedings and the Crown Court proceedings were concluded.

4. Sitting as a Divisional Court, the court declined to quash Bari’s section 24 conviction summarily. That conviction followed a guilty plea. Judicial review of a Magistrates’ Court conviction generally concerns an error of law and the lawfulness and regularity of the proceedings, rather than the safety test applied by the Criminal Division. The possible effect of the legal error on the Magistrates’ Court’s handling of the matter, including under section 51 of the Crime and Disorder Act 1988, required cautious consideration.

5. The court granted Bari permission to bring judicial-review proceedings and extended time for filing his claim form until 5 April 2022.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 596, the court granted leave to appeal and quashed seven convictions under section 25 of the Immigration Act 1971. No retrials were sought.
• Divisional Court: The same constitution granted Nima Bari permission to challenge his Magistrates’ Court conviction under section 24 by judicial review, with extended time for filing the claim.