Abdul Basset Yenec Ibrahim Ahmed v R

Pending definitive Sentencing Council guidance, sentencing for small-boat facilitation under section 25(1) of the Immigration Act 1971 requires a structured assessment of culpability, harm, aggravating factors and mitigation.

• High culpability concerns commercial organisers and substantial roles; low culpability includes minor roles, non-commercial activity and coercion or pressure.
• For a low-culpability pilot of a reasonably seaworthy boat, the starting point is three years before plea reduction and other adjustments.
• The increased maximum sentence is principally relevant to organisers, not migrants piloting boats primarily to secure their own entry. Age, maturity, cooperation, lack of convictions and asylum-related circumstances may significantly reduce sentence.

On 15 August 2023, the appellant, aged 18, piloted an overcrowded small boat carrying 59 migrants from France towards the United Kingdom. He had been offered a discount on his own passage in return for piloting the boat.

He pleaded guilty to attempting to arrive without valid entry clearance, contrary to section 24 (D1) of the Immigration Act 1971, and to facilitating unlawful immigration under section 25(1). The Crown Court at Canterbury imposed concurrent detention terms of eight months and two years respectively.

The appeal concerned whether the two-year sentence for facilitation properly reflected the appellant’s low culpability, youth, personal circumstances and limited role.

Appeal allowed. The court quashed the two-year sentence for facilitating unlawful immigration and substituted 18 months’ detention. The concurrent sentence for the section 24 (D1) offence remained unchanged.

1. Interim guidance. In the absence of a definitive Sentencing Council guideline, the court gave general guidance for section 25(1) offences involving small boats. The guidance was confined to the category before the court and was not a comprehensive guideline for every section 25 offence. The approach was consistent with the interim guidance given in Ginar [2023] EWCA Crim 1121.
2. Culpability and harm. Culpability is high where the offending is commercial and the offender has a substantial role. It is low where the role is minor, there is no commercial element, or the offender acted under coercion or pressure. The highest harm category concerns a high risk of serious injury or death, assistance to large numbers, or exploitation or coercion. Harm in a Channel crossing is unlikely to be minimal because of risks to life, shipping and the public interest in border controls. The drug-importation guideline was not sufficiently analogous to be applied directly.
3. Effect of the increased maximum. The increase in the maximum sentence to life imprisonment should produce a significant sentencing increase principally for organisers of small-boat crossings. It was inappropriate to uplift the sentence for a pilot whose primary interest was securing his own entry.
4. Starting point and mitigation. For low culpability involving a reasonably seaworthy boat, the starting point is three years’ custody before plea reduction and consideration of aggravating and mitigating factors. The factors are non-exhaustive. Age, lack of maturity, cooperation, no previous convictions and circumstances supporting an arguable asylum claim may be relevant. Roman [2017] EWCA Crim 6 was distinguished because its facts were materially different and it did not purport to give general guidance.
5. Application. The appellant’s culpability was low. His financial benefit was limited to a discount, there were no aggravating factors, and the harm was more than minimal but not at the highest level. His age required a significant reduction. Reaching 18 does not create a sentencing cliff edge, as explained in Clarke [2018] EWCA Crim 185. The appropriate sentence after trial was two years; after the 25 per cent guilty plea reduction it was 18 months.
6. Immediate custody. Although the sentence could have been suspended, immediate custody was appropriate given the nature of the offence. The judge’s consideration of prison pressures, including the reference in Ali [2023] EWCA Crim 232, did not undermine that conclusion.

• Court of Appeal (Criminal Division) — The appeal was allowed and the sentence for the section 25(1) offence was reduced to 18 months’ detention: [2023] EWCA Crim 1521.
• Crown Court at Canterbury — On 21 September 2023, the appellant was sentenced to two years’ detention for facilitating unlawful immigration and eight months’ detention for attempting to arrive without valid entry clearance, concurrently.
• Folkestone Magistrates’ Court — On 16 August 2023, the appellant pleaded guilty to the section 24 (D1) offence and was sent for trial on the section 25(1) charge.