Rescued asylum seekers can be prosecuted after UK court ruling

Elements of the new Nationality and Borders Act were called into question at the Court of Appeal

Migrants are taken to Dover, Kent, on a Border Force vessel after being rescued from a small boat on the English Channel on February 7. PA
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The UK Court of Appeal approved new legal powers on Thursday that will allow authorities to prosecute asylum seekers who arrive in the country after being rescued at sea.

After appeals by three Sudanese men who are due to stand trial for immigration offences this year, senior judges considered provisions in the Nationality and Borders Act, which came into force in 2022.

Parts of the Act sought to close a perceived loophole in the law, which meant migrants crossing the English Channel could not be prosecuted with entry offences if they did not reach UK land by themselves.

Two of the men are alleged to have assisted unlawful immigration by steering dinghies containing other migrants across the Channel, while the third is charged with trying to arrive in the UK in a dinghy.

They challenged preliminary rulings made by Mr Justice Cavanagh at Canterbury Crown Court, with their lawyers saying the judge had incorrectly interpreted the new laws.

The appeals centred on whether parts of the new act have changed the law to allow the prosecution of migrants who are intercepted or rescued at sea.

UK coastguard responds to migrant emergency in English Channel - in pictures

Before the new act, migrants who were intercepted by the authorities or rescued while still at sea could not be charged with knowingly entering the UK without leave.

Lawyers representing the man charged with trying to arrive in the UK said a new offence of knowingly arriving in the country without valid entry clearance could not be committed by a person intending to seek asylum, because entry clearance is not available to asylum seekers.

They said it was also not possible to make a claim for asylum from outside the UK, while an application for entry must be made from outside the country.

Migrant children rescued in French waters - in pictures

Lawyers for the other two men said that, for an offence of facilitating the illegal entry of another person to be committed, the defendant would have to be aware that the conduct of the other person was criminal.

But on Thursday, the Lord Chief Justice Lord Ian Burnett rejected the appeals and upheld Mr Cavanagh’s interpretation of the new laws.

Sitting with Mr Justice David Holgate and Mr Justice Simon Bryan, he concluded that the new law “applies to a person who requires entry clearance under the immigration rules and who knowingly arrives in the UK without such clearance, even if he or she intends to claim asylum on arrival”.

“That is also the position in relation to an attempt to commit such an offence," Mr Burnett said.

Afghan migrant documents dangerous journey across Channel - video

Afghan migrant documents dangerous journey across Channel

Afghan migrant documents dangerous journey across Channel
Afghan migrant documents dangerous journey across Channel

The judge also said that, in order for a facilitation offence to be committed, the “conduct facilitated need not be criminal at all”.

“It need only be a breach of immigration law,” he said.

The legislation was introduced last year to clamp down on the large number of migrants crossing the Channel in small boats.

Home Office figures suggest more than 2,000 migrants have crossed the Channel already this year.

Updated: March 02, 2023, 9:13 PM

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