R v Ashari Mohamed & Ors

A person who requires entry clearance under the Immigration Rules commits the offence in section 24(D1) of the Immigration Act 1971 by knowingly arriving without valid clearance, even if intending to seek asylum on arrival. The statutory scheme creates no asylum-seeker exemption from the applicable entry-clearance requirement.

Sections 30(3) and 37 of the Nationality and Borders Act 2022 interpret aspects of the Refugee Convention but do not create a criminal defence. The amended facilitation offence in section 25 includes facilitating unlawful arrival or attempted arrival. Its mens rea is confined to the matters expressly stated in section 25(1)(b) and (c).

The appellants, Sudanese nationals, travelled from France in small boats carrying other migrants. Each boat was intercepted or rescued in United Kingdom territorial waters. The migrants were taken to the approved area at Dover and claimed asylum. The prosecution alleged that the appellants had steered the boats.

At a preparatory hearing in the Crown Court at Canterbury, Cavanagh J ruled for the prosecution on five recurring questions concerning sections 24(D1) and 25(1) of the Immigration Act 1971, as amended by the Nationality and Borders Act 2022. Leave to appeal was granted on four questions: the application of section 24(D1) to asylum-seekers; whether sections 30(3) and 37 of the 2022 Act created a defence; whether facilitating unlawful arrival fell within section 25; and whether additional knowledge of the passenger’s criminality was required.

1. Appeals dismissed. The Court upheld all four preparatory rulings challenged on appeal.

2. Section 24(D1) of the Immigration Act 1971 applies where a person who requires entry clearance knowingly arrives without valid entry clearance. A visa national requires that clearance before travelling to the United Kingdom for any purpose under the Immigration Rules. An intention to claim asylum on arrival creates no exemption from that requirement. The same conclusion applies to an attempt to commit the offence.

3. Sections 30(3) and 37 of the Nationality and Borders Act 2022 do not create a defence to a charge under section 24(D1). They concern the interpretation of specified parts of the Refugee Convention. The statutory defence in section 31 of the Immigration and Asylum Act 1999 remains confined to the offences listed there, which do not include sections 24, 25 or 25A of the 1971 Act.

4. The amendment of section 25(2) to include a law controlling entitlement to arrive in the United Kingdom brought unlawful arrival under section 24(D1) within “immigration law”. The entry-clearance regime under section 3A controls entitlement to arrive. In any event, criminal liability for arrival without required clearance itself controls that entitlement. Section 25(1) can therefore apply to facilitation of unlawful arrival or attempted unlawful arrival.

5. The mental elements are those expressly set out in section 25(1)(b) and (c). The prosecution need not prove that the facilitator knew, or had reasonable cause to believe, that a migrant was an egregious case or was not a genuine or presumptive refugee. The conduct facilitated need only be a breach of immigration law; a decision not to prosecute in a particular case on public-interest grounds does not alter the statutory construction.

6. The Court also had no jurisdiction under section 35 of the Criminal Procedure and Investigations Act 1996 to entertain the proposed human-rights ground because it was not a ruling made at the preparatory hearing.

• Court of Appeal (Criminal Division) The Court dismissed the appeals under section 35 of the Criminal Procedure and Investigations Act 1996 and upheld the preparatory rulings: [2023] EWCA Crim 211.
• Crown Court at Canterbury Cavanagh J ruled for the prosecution on the relevant points of statutory construction at a preparatory hearing. No citation for those rulings is stated in the judgment.