Convictions overturned for four men who steered boats carrying migrants over Channel


Re: Bani v The Crown [2021] EWCA Crim 1958

In these four cases the Court of Appeal held the convictions to be unsafe and ordered they must be quashed. The appellants were convicted of assisting unlawful immigration to the United Kingdom contrary to section 25 of the Immigration Act 1971. Each of the four appellants is alleged to have steered a Rigid Hulled Inflatable Boat carrying migrants from France towards the UK. All on board each of the four boats were seeking to arrive in the UK without having been given prior leave to do so and were not EU citizens.

The section 25 offence was considered by the court in Kakaei [2021] EWCA Crim 503. It was principally because of the explanation of the law in that decision that these appellants contented that their convictions were unsafe.  For the reasons set out in Kakaei, it was necessary for the prosecution to prove that a person charged under section 25 in cases like this did acts which facilitated the “entry” without leave into the United Kingdom of a non-EU citizen. This means that a person who disembarks at a port and remains within its “approved area” does not “enter” the United Kingdom.  It was submitted by several appellants that the defence offered by Kakaei was not known or appreciated by those providing their advice and representation.

In consideration of the issue of ‘intended arrival point’ and the decision of Kakaei, an appellant submitted that the offence in section 25 of the Immigrations Act 1971 could not have been committed because the applicant and those on board had sailed towards the United Kingdom intending either to be intercepted at sea by the UK authorities so they could immediately claim asylum or to arrive at an area in a port where they could present themselves to the immigration authorities for the purposes of claiming asylum.

Tim Owen QC was involved in this case.