by Vicky Taylor in collaboration from members of the Captain Support UK network

Since 2018, the number of people crossing the English Channel on ‘small boats’ in search of safety has risen year on year. As others have argued, including elsewhere on this blog, this is a manufactured ‘crisis’ of the British government’s own making. Decades of securitisation in the juxtaposed controls in Calais have continually forced people trying to reach the UK to use dangerous routes to evade enforcement measures. With no other means of reaching the UK (contrary to the government’s narrative, access to so-called ‘safe and legal routes’ is extremely limited), irregular journeys by sea have become, for most, the default option.

This blog post records how people crossing the Channel in ‘small boats’ are being arrested, charged, and imprisoned under criminal law, either for arriving or for ‘facilitating the arrival of others’ through piloting the dinghy they travelled in. These crimes have a longer history and were introduced in their modern form in the Immigration Act 1971 (see Ana Aliverti’s work). On 28th June 2022, they were amended and expanded under the Nationality and Borders Act 2022 (NABA). This legislation closed the perceived ‘loophole’ which resulted in a series of successful ‘boat driver’ appeals, following the logic of R vs Kakaei [2021].

On paper, anyone now arriving via irregularised means (e.g. in a lorry, car, boat, or using a false identity) could be charged under these offences. The NABA not only expanded the scope of these charges, but also significantly lengthened their maximum sentences: the maximum sentence for illegal entry under Section 24 of the amended Immigration Act 1971 is now 4 years. For facilitation (including boat driving), under Section 25, the maximum sentence is life imprisonment.

The Home Office has remained remarkably quiet about these changes compared to other ‘stop the boat’ policies (such as its agreement with Rwanda). Prosecutions are not routinely featured in press releases or quarterly statistical releases. This is perhaps surprising given that previously these prosecutions have been defended as necessary for ‘deterrence’, which at a minimum requires that the intended audience know such policies exist. The other justification provided is that these prosecutions target ‘criminal gangs’, yet judges have publicly recognised that those charged are not routinely part of organised criminal networks. Even following the Home Office’s own logic, therefore, the justification for imprisoning people seeking asylum for arrival – an act necessary to do so – falls short.

From Sea to Prison: Criminalisation in Practice

As with many border control policies, there is a distinct gap between the legislation and its enforcement in practice. The CPS has accepted that imprisoning c. 50,000 people a year under Section 24 – as the NABA enables – would not be in the public interest. Instead, for now, charges are only brought against cases with ‘aggravating factors’.

In practice, this means two groups of arrivals are charged (although not systematically). First are people who have re-entered the UK, or whose fingerprints are already registered due to a deportation order or entry ban. Reasons for re-entry vary, but include victims of trafficking (forcibly taken back out of the UK), and those who, in desperation, leave to search for missing family members. These people are charged with Section 24 (‘illegal entry’). They are identified through fingerprint checks that take place in the Manston short-term holding facility shortly after arrival.

The second group are people where there is evidence that they had their ‘hand on the tiller of the dinghy’, however temporarily: the alleged ‘pilot’ or ‘captain’. This evidence is most often photographic, from drones or Border Force officers with long-lens cameras on vessels in the Channel. They are also sometimes identified from the testimonies of others. It is worth noting that people end up in this ‘captain’ position for a variety of reasons: through force and duress; due to having prior boating experience; or otherwise. To quote a judge dealing with one of these cases: “hands on tiller [cases] are random chance”: they are far from ‘evil smugglers’ as portrayed by the media, but are people seeking to cross borders for safety or a better life, like everyone else on board. The prosecutorial evidence is often weak, explaining why the higher Section 25 offence is rarely applied and often dropped, leaving only the Section 24 charge. Indeed, in one observed case, mere ‘proximity’ to the tiller was enough to justify being charged, despite his contestations that the ‘ real drivers’ had moved elsewhere on the boat.

These two groups – re-entrants, and those with their ‘hands on the tiller’ – are arrested under criminal powers from Manston. Without access to their phones, they are taken to a police station for questioning. They are offered a duty solicitor, and after being held overnight in a police cell, usually appear in the Magistrates Court the next day. For those arrested, the whole process, from sea to prison, takes less than 48 hours.

Piecing together data from FOIs, MPs questions in Parliament, and my own observations, it seems likely that over 185 people have been charged with either Section 24 or 25 for crossing in small boats since the NABA came into force June 28 2022 – 1st June 2023. In other words, on average, about 1 person in every 5 or 6 boats is arrested. The Home Office recently announced that 87 of those were for piloting. (Please note that this data has not been verified as full FOI data from the Home Office has not yet been released).

Courtwatching

As Ana Aliverti also found in earlier work on ‘crimes of mobility’, the application of these crimes against foreign nationals and people seeking asylum often results in a series of erosions in the ‘ rights of the accused’ usually afforded to those at the sharp end of the criminal justice system (see also Dauvergne 2013).

In courts across the south east, the new legislation is being negotiated and improvised by Judges, Magistrates, interpreters, lawyers, and ‘defendants’. In the absence of official sentencing guidelines, since June 2022 a variety of punishments have been handed down. In the early days, sympathetic magistrates issued fines and suspended sentences for the Section 24 offence. However, there has been an increasing convergence towards a “starting point of 12 months imprisonment”, based not on official guidelines, but instead on informal sentencing remarks by a Judge in Canterbury. Perhaps scared to deviate in a hostile political environment, the rest of the judiciary in Kent has uncritically followed suit. The majority of those being charged with Section 24 are now, therefore, receiving between 9 and 12 month custodial sentences (half of which is served in prison).

Potential defences are also being shut down. In March, a Court of Appeal reiterated that Article 31 of the Refugee Convention does not defend against these crimes, and therefore that people seeking asylum are not exempt from prosecution. Increasingly, duty solicitors encourage their clients to plead guilty at the first opportunity, ensuring their eligibility to a sentence reduction. This advice is given after a brief 10-20 minute consultation in cells beneath the magistrates court. Extracting early guilty pleas reduces space for further legal challenges, and allows for many of these cases to be dealt with with relative ease and administrative efficiency, turning the courts into a production line of cookie-cutter injustice which costs the government less to run. Those convicted are left confused and distressed by hostile court proceedings translated through an interpreter, who may or may not even be in the same room, or even speak their first language or dialect.

The influence of government rhetoric is clear from remarks made by judges and magistrates in these cases, who often display misunderstandings of key elements of the asylum system (“am I correct that asylum seekers aren’t allowed to work?”), and who frequently adopt understandings of immigration law from political lines. Such logic is often used in sentencing justifications, including that “you are expected to claim asylum in the first country in which you arrive”, contrary to the principles of the international refugee protection system. “By being at the helm of an unseaworthy RHIB”, the justification goes, “you placed both yourself and others in considerable danger. This offence has the capacity to undermine national security and public confidence in the asylum system. It is costing the state enormous sums to police, and it is a route which is helping to fund serious and organised criminal gangs” (Judge, fieldnotes).

Bail is routinely denied on the basis that the “defendant is here illegally with no ties and no address. He knows that if he returns to court that there is a chance he will be deported and potentially receive a custodial sentence”, even when such ties, including the existence of family in the UK, had been mentioned (Judge, fieldnotes). Frequently, the fact that they “have already shown the wherewithal to enter and exit the country at will” (Judge, fieldnotes) is also relied upon. The extent to which government and right wing media rhetoric has infiltrated the courts’ understanding of people undertaking irregular journeys to the UK is clear.

We are at the beginning of this new phase of criminalisation playing out in courtrooms across Kent. Unlike many of the government’s ‘stop the boat’ policies, the imprisonment of people under criminal law is occurring largely without scrutiny or public awareness. Far from representing “the most egregious cases” (House of Lords), those being imprisoned are the victims of a seemingly arbitrary CPS charging policy, which deliberately mischaracterises those driving the boats, and results in the incarceration of people seeking asylum, potential victims of trafficking, and age-disputed children. While pressing questions remain about the compatibility of these prosecutions under international law, what is certain is the significant distress and harm such arbitrary incarceration is causing people who come to the UK for safety and a better life.

first published on 19 June 2023.