R v Aydin Ginar

For an adult passenger convicted of arriving in the United Kingdom without valid entry clearance contrary to section 24(D1) of the Immigration Act 1971, the custody threshold will generally be crossed. Before case-specific adjustment and credit for a guilty plea, the appropriate sentence will ordinarily be about 12 months’ imprisonment.

Sentencers must apply the General guideline and assess culpability, harm, the purposes of sentencing, and aggravating and mitigating factors. Protection of the public will generally predominate. Deterrence has limited independent weight for passengers in dangerous crossings. Previous unsuccessful immigration, leave-to-remain or asylum applications may aggravate the offence even where they involved no earlier crime, but their weight depends on the circumstances. Arguable asylum grounds, coercion, good character and powerful personal mitigation may reduce sentence.

The applicant, a Turkish national, pleaded guilty in the magistrates’ court to attempting to arrive in the United Kingdom without valid entry clearance, contrary to section 24(D1) of the Immigration Act 1971. He had travelled from France as a passenger in a rigid inflatable boat carrying more than 50 foreign nationals. He was committed to the Crown Court at Canterbury and received eight months’ imprisonment on 18 August 2023, after full credit for his guilty plea.

His application for leave to appeal against sentence was referred to the full court. He contended that the recorder had wrongly treated his earlier immigration and asylum history as aggravating, and that the sentence was manifestly excessive. The court considered both grounds and gave general sentencing guidance for this recently created offence.

1. The application for leave to appeal against sentence was refused. The recorder had not erred in principle and the eight-month sentence was not manifestly excessive.

2. In the absence of an offence-specific guideline, sentencers must follow the Sentencing Council’s General guideline. They should form a provisional sentence by reference to the statutory maximum, relevant appellate decisions and analogous definitive guidelines; assess culpability and harm; identify the applicable sentencing purpose; then adjust for aggravating and mitigating factors before allowing credit for a guilty plea.

3. For an adult passenger offending under section 24(D1) of the Immigration Act 1971, the custody threshold will generally be crossed. The inherent seriousness of the offending ordinarily calls for a provisional sentence of about 12 months’ imprisonment before further adjustment. The offence is less serious than possession of a false identity document with intent under section 4 of the Identity Documents Act 2010, considered in R v Kolawole [2004] EWCA Crim 3047.

4. Protection of the public will generally be the predominant sentencing purpose. Deterrence has limited distinct weight for passengers, who will commonly be unlikely to be deterred by the prospect of custody. Harm includes undermining border control, the risk of death or serious injury, rescue and interception costs, and disruption to legitimate travel. Culpability increases where the offender operates the means of arrival, involves others, or seeks entry for criminal activity. It is reduced where the offender genuinely intends to seek asylum on arguable grounds.

5. Relevant convictions, excessive planning, and previous unsuccessful applications for leave, asylum or entry clearance may aggravate sentence. A prior unsuccessful immigration history can do so even if it involved no previous offence, because a further attempt to arrive without valid entry clearance is more serious. Its weight remains fact-specific. Good character, coercion, youth, mental disorder, personal danger, and circumstances supporting an arguable asylum claim may mitigate.

6. Here, the recorder was entitled to treat the applicant’s repeated unsuccessful attempts to enter or remain in the United Kingdom as aggravating. She was also entitled to balance that factor against his substantial personal mitigation, adopt a 12-month sentence after trial, and reduce it to eight months for the guilty plea.

• Court of Appeal (Criminal Division): The application for leave to appeal against sentence was refused: [2023] EWCA Crim 1121.
• Crown Court at Canterbury: On 18 August 2023, the applicant was sentenced to eight months’ imprisonment after being committed for sentence.
• Magistrates’ court: The applicant pleaded guilty to attempting to arrive without valid entry clearance and was committed to the Crown Court for sentence.