The Nationality and Borders Act 2022 created a new offence contrary to section 24(D1) Immigration Act 1971.
The provision states that:
A person who—
(a) requires entry clearance under the immigration rules, and
(b) knowingly arrives in the United Kingdom without a valid entry clearance,
commits an offence.
The offences created by the 2022 Act modify existing offences, and we have already seen a steady stream of people prosecuted for the offence under s 24(D1), which deals with people entering via “small boats”.
At the present time there is no definitive sentencing guideline for this offence, which carries a maximum penalty of 4 years imprisonment, but in a recent Court of Appeal case, the following principles were established:
(1) The statutory maximum sentence for this new offence is four years’ imprisonment. So too is the maximum sentence for an offence under section 24(B1) of the 1971 Act of knowingly entering the United Kingdom without leave. Before the amendment, the maximum penalty for the predecessor of that offence was six months’ imprisonment.
It is apparent that Parliament regarded that previous level of sentence as insufficient, both for the existing offence of entering without leave and for the new offence of arriving without a valid entry clearance. The four-year maximum is also longer than some other offences which may be committed in an immigration and asylum context.
The present offence is inherently less serious than an identity document offence of the kind for which the court in R v Kolawole [2004] EWCA Crim 3047 indicated as attracting a sentence in the range of 12 to 18 months, even on a guilty plea and even for a person of previous good character.
(2) The predominant purpose of sentencing in cases of this nature will generally be the protection of the public. Deterrence can carry only limited weight as a distinct aim in the sentencing of those who have travelled as passengers in a crossing such as that upon which the applicant embarked. The circumstances of those who commit offences of that kind, as opposed to those who organise them, will usually be such that they are unlikely to be deterred by the prospect of a custodial sentence if caught.
(3) The following considerations are relevant as to culpability and harm.
There is legitimate public concern about breaches or attempted breaches of border control, and this type of offence, which is prevalent, will usually result in significant profit to organised criminals engaged in people smuggling.
A key feature of culpability inherent in the offence, save in very exceptional circumstances, is that the offender will know that he is trying to arrive in the UK in an unlawful manner: if it were otherwise, he would take the cheaper and safer alternative route which would be available to him.
The harm inherent in this type of offence is not simply the undermining of border control but also, and importantly, the risk of death or serious injury to the offender himself and to others involved in the attempted arrival, the risk and cost to those who intercept or rescue them, and the potential for disruption of legitimate travel in a busy shipping lane.
(4) The seriousness of this type of offence is such that the custody threshold will generally be crossed and that an appropriate sentence, taking into account the inherent features but before considering any additional culpability or harm features, any aggravating and mitigating factors and any credit for a guilty plea, will be of the order of 12 months’ imprisonment.
(5) Culpability will be increased if the offender plays some part in the provision or operation of the means by which he seeks to arrive in the United Kingdom, for example by piloting a vessel rather than being a mere passenger; or if he involves others in the offence, particularly children; or if he is seeking to enter in order to engage in criminal activity (for example by joining a group engaged in modern slavery or trafficking). Culpability will be reduced if the offender genuinely intends to apply for asylum on grounds which are arguable.
(6) Consideration of aggravating and mitigating factors must of course be a case-specific matter, but the following may commonly arise and will call for either an upwards or downwards adjustment of the provisional sentence. The offence will be aggravated by relevant previous convictions, by a high level of planning going beyond that which is inherent in the attempt to arrive in the United Kingdom from another country, and by a history of unsuccessful applications for leave to enter or remain or for asylum. Even if the previous attempts did not involve any criminal offence, the history of previous failure makes it more serious that the offender has now resorted to an attempt to arrive without valid entry clearance. The weight to be given to that factor will of course depend on the circumstances of the case.
(7) The offence will be mitigated by an absence of recent or relevant convictions, good character, young age or lack of maturity, mental disorder or learning disability, or the fact that the offender became involved in the offence due to coercion or pressure.
(8) Cases of this nature will often have powerful features of personal mitigation, to which appropriate weight must be given on a fact-specific basis. The circumstances which are relied upon as arguable grounds for claiming asylum, such as the offender seeking to escape from persecution and serious danger, are likely also to mitigate the offence of arriving in the United Kingdom without a valid entry clearance.
Some offenders may have been misled as to what would await them in this country if they paid large sums of money to the criminals who offered to arrange their transport. Some may have suffered injury or come close to drowning in crossing in a dangerously overcrowded vessel. It will be for the sentencer to evaluate what weight to give to circumstances of that nature in a particular case.