ON APPEAL FROM THE CANTERBURY CROWN COURT
His Honour Judge O'Mahony
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HOLGATE
HER HONOUR JUDGE TAYTON QC,
sitting as a judge of the Court of Appeal Criminal Division
| THE CROWN
|- and -
James Marsland (instructed by the Crown Prosecution Service Appeals Unit) for the Respondent
Hearing dates : 25 March 2021
Crown Copyright ©
Lord Justice Edis :
The proceedings below and the facts
"Over the second half of 2019, following the refusal of his asylum claim in Denmark in April 2019, the Appellant, along with other migrants, repeatedly attempted to enter the UK as genuine asylum seekers on numerous occasions including on 24 July, 12 and 29 December 2019 as alleged. He will say that over that period he made near nightly attempts to enter the UK and was routinely detained by the UK and French authorities. He will say that, save for the period when he was detained in the UK, he resided in migrant camps and slept rough in the area of Dunkirk.
"With respect to his crossings of the British Channel on 24 July and 29 December 2019, he will say that the crossing was planned and arranged by others and he, like the other migrants aboard, paid agents to be allowed passage on the vessel. He will concede that at some point during the journeys across the Channel he helped to steer the vessel. However, he will say that a number of the occupants of the vessel took turns to steer the vessel at various points during the journey. He will say on the second occasion he initially refused to help steer the boat and was allowed to be a passenger on that basis but eventually did assist when it became clear to him during the crossing that the other passengers could not safely steer the vessel and he became convinced their lives were at risk if he did not assist. He will say he believed all the other passengers on both occasions to be genuine asylum seekers like himself who intended to present themselves to the authorities immediately on disembarkation to claim asylum."
1. Mr Kakaei will plead guilty to counts 1 and 3 on the indictment to the following limited extent. He will accept that he facilitated the entry of the other migrants on the boat with him only by, along with many of those aboard, helping to pilot the vessels.
2. Mr Kakaei will deny that he had any financial motive to assist with the piloting of the vessels and that he in fact paid a people smuggler like all the other migrants on board for the opportunity to try and cross the channel on those two occasions.
3. Mr Kakaei will say that he believed that all the migrants aboard on both occasions, including himself, would surrender to the UK border authorities and claim asylum immediately on disembarking in the UK.
4. Mr Kakaei will say that he is a genuine refugee who was forced to flee from his home country of Iran due to his sexuality.
STATEMENT OF OFFENCE
ASSISTING UNLAWFUL IMMIGRATION TO MEMBER STATE, contrary to section 25(1) of the Immigration Act 1971.
PARTICULARS OF OFFENCE
FOUAD KAKAEI on [date] assisted the illegal entry of persons who were not citizens of the European Union which facilitated the commission of an attempted breach of immigration law by those individuals, namely entering the United Kingdom without leave contrary to section 24 of the Immigration Act 1971, knowing or having reasonable cause for believing that the act facilitated the commission of a breach of immigration law by those individuals and that those individuals were not citizens of the European Union."
The proceedings before the judge and his ruling
The development of this case in terms of the legal process is that, following all those facts, the indictment has now been amended. Arguments centred, at least initially, on whether this was a Kapoor situation or whether it is a situation which comes within the court's thinking in Bina, but the thinking in Bina is clear, and that is the court there considered definitively that (inaudible) the fact that you are guilty of a section [25A] offence does not exempt you from liability under section 25.
There is a further issue, which is, I think agreed now to be a matter for the jury. Certainly, I think it is and I rule it is. If the defendant, as he has admitted, piloted the boat at times during the course of its carriage across the Channel, is that de minimis or facilitating unlawful entry. But the argument before me doesn't visit that matter, it appears to be accepted – and I am grateful for the very helpful arguments on both sides, particularly from Mr Brewer but also [counsel who then appeared for the prosecution]. That's not what I have to decide because it seems to be accepted that section 24 does not exempt you – guilt in that – from section 25.
So it boils down to a discrete issue and that is this. The defendant is charged with assisting – and here's the word – unlawful immigration. The particulars are that, in each case, he attempt – assisted in the attempted breach of immigration law and – and the question is, therefore, and the issue, "Would the illegal entrants have been committing an offence, either as an attempt or, if it was the completed matter, the full offence?" And that's the legal matter that I have to rule on now, which I am invited to do.
Put in simple terms, if it's a Kapoor situation, the answer is no. If it's a section [25A] Bina situation, the answer is yes. The – Mr Brewer, on behalf of the defendant, submits, not only in his written submissions but orally also, that Kapoor is the leading case which applies here; that, if a – a person has no right to come into this country, per se, appears at a port, at a country, and immediately surrenders to – to a breach – to claim asylum, that there is no breach of immigration law and that Bina merely adds a gloss to that, that section [25A] doesn't of itself mean that it's not also section 25 and that would be a matter for the jury if they concluded that it may have been the case that the illegal entrants per se were not in breach of immigration law because of the Kapoor application.
Counsel on behalf of the prosecution, says really quite simply that the illegal entrants would have committed a complete section 24 offence had they disembarked. The case of Kapoor must be distinguished because it is fact-specific and very different from this situation and that the clear guidance is from the case of Bina.
In particular, Kapoor was based on the specific legislation of the Immigration Act of 1971, section 11, referred to a disembarking entrant, and it's indicative, says the Crown, the flight there was one that had come from Bangkok to London and that immigration officials were involved at the point of disembarkation and that it's indicative here that the defendant was coming from one member state to another, not seeking asylum from France; that there is a strong inference that the – the craft was not heading for a port where UK border officials, immigration officials, would be present in order to receive claimants for asylum.
But the (inaudible) – I appreciate you can't interpret that – of Kapoor is that, under the 1971 Act and on the particular facts, if you are entering for the specific purpose of surrendering to the authorities and claiming asylum, that that does not amount to unlawful entry, but my conclusion, as a matter of law, and I so rule, is that, in respect of this issue, the Crown is correct and that, at the height of the evidence of course - because this could still be a jury trial - that the defendant was assisting unlawful immigration, leaving aside the de minimis point, because the illegal entrants would have been committing a section 24 offence.
They have no documents and it's not without significance the defendant himself pleaded guilty to a section 24 offence in respect of what is now count 3, and that's my ruling.
The grant of leave
"The Judge erred in ruling that the present case could be distinguished from R v Kapoor  EWCA Crim 435. The ratio in that case precisely covered the situation in the present matter. It is submitted that if the migrants had been intending to surrender and claim asylum immediately upon disembarking they would not have breached immigration law and the only applicable offence would have been one contrary to section 25A of the Immigration Act 1971 if a financial motive could have been established. It is submitted that the Judge erred in accepting the prosecution's submission that R v Bina  EWCA Crim 1444 applied to the present case. The fact that the appellant had himself pleaded guilty to an offence of illegal entry contrary to section 24 of the 1971 Act was wholly irrelevant to the question that the Judge had to resolve. It is submitted that contrary to the judge's ruling, the appellant's case did amount to a defence in law. In ruling as he did, the Judge deprived the appellant of a realistically viable defence before the jury and therefore made an acquittal all but legally impossible. As a result of this error the appellant's conviction by his own plea is unsafe (R v Chalkley  EWCA Crim 3416)."
"The argument before the judge was concerned in particular with the relationship between s.11, 24, 25 and 25A of the 1971 Act. The applicant relied in particular on the decision of this court in Kapoor  1 WLR 3569, whereas the respondent relied in particular on the subsequent decision of this court in Bina  2 Cr App R 30. The judge based his ruling against the applicant on Bina. Against the background of the tension between the decisions in Kapoor and Bina and the interrelationship between the sections of the 1971 Act to which we have already referred, we have concluded that it is arguable that the judge was wrong. In addition, given the prevalence of this type of offending and the potential practical consequences, there is an obvious need for clarity."
"The respondent concedes that the judge's ruling deprived the applicant of any defence such that he is able to argue that if the ruling was wrong his convictions on Counts 1 and 3 are unsafe."
The correct legal position on the ambit of sections 25 and 25A of the Immigration Act 1971
The Immigration Act 1971
The short point
The authorities on the 1971 Act
"The overall submission here is that the legislative scheme of Sections 25 and 25A is to the effect that a person who facilitates or seeks to facilitate the entry into the United Kingdom of an asylum seeker may only be proceeded against under Section 25A, and in that case the prosecution have to prove that it was done for gain. It is also said that Section 25 must be referring to the immigration law of a European Member State other than the United Kingdom (see paragraph 38 (a) of the skeleton argument), and that there could have been no offence contrary to Section 25 on the facts here because Edmir's son, being only 2, cannot himself have been guilty of any offence and so has not committed a breach of immigration law within the meaning of Section 25 (1) (a).
"19. There is nothing in these two subsidiary submissions. There is nothing whatever to suggest that the first is the case…."
"21. I return to the principal point on the relation between Section 25 and 25A. In my judgment it is not possible to conclude, by reading Section 25 and 25A together, that only Section 25A covers a case where the third party is an asylum seeker. Section 25A would in my judgment apply in the case of an asylum seeker who arrives in or enters the United Kingdom without any breach of immigration law being committed by the third party at all. It is plainly principally directed at traffickers of asylum seekers.
"22. Section 25, by contrast, is concerned with facilitation of the commission of breaches of immigration law."
"36. In our view for the purposes of section 25(2) an immigration law is a law which determines whether a person is lawfully or unlawfully either entering the UK, or in transit or being in the UK. If a person facilitates with the necessary knowledge or reasonable cause to believe, the unlawful entry or unlawful presence in the UK of a person who is not a citizen of the EU, then he commits the offence."
"38. We also note that, if the respondent is right, then, on the facts of this case, section 25A can simply be bypassed. Section 25A limits the offence of facilitation to someone who knowingly and for gain facilitates the arrival in, or the entry into, the United Kingdom of an asylum seeker and excludes anything done by a person acting on behalf of an organisation which aims to assist asylum-seekers and does not charge for its services. Section 25A strikes a careful balance reflecting the obligation of the UK under the Refugee Convention. It would be strange if a person who facilitated the arrival into this country of an asylum seeker would not be guilty of an offence under section 25A designed specifically to deal with asylum seekers but guilty of the general offence in section 25. Given that an asylum seeker who presents himself to an immigration officer at an airport and claims asylum is not an illegal entrant or, at least for the time being and following temporary admission, not unlawfully in the UK, section 25 would, on our preferred interpretation not bite. It would be strange if Parliament by enacting the 2004 Act intended to interfere with the balance achieved in 2002 when enacting section 25A."
"16. We turn to the arguments, principally of law, raised on the proposed conviction appeal. First, it is submitted that the judge erred in failing to accede to the defence submission of no case to answer. Behind that broad submission there are three points. First, it was submitted that the judge was wrong to conclude that the offence in s.25(1) of the 1971 Act can be committed where the individual, whose breach of immigration law is hypothetically facilitated, is an asylum seeker or proposed asylum seeker. It is submitted that the Crown evidence indicated that all the individuals concerned fell into that category. Secondly, it is argued that the judge was wrong in failing to find that the offence in count 1 had been wrongly charged as a conspiracy to commit the s.25(1) offence, rather than as an offence under s.25A of the Act (helping an asylum seeker to enter this country). Thirdly, [an immaterial submission is summarised].
"17. The first point can be dealt with in our judgment shortly. There is nothing whatsoever in s.25 of the 1971 Act to indicate that the individual non-national of the European Union, whose breach of the immigration law has been facilitated, needs to be a person who is not an applicant for asylum. In our view it is plain that there is no such limitation. Unfortunately, even persons who in the end are found to have genuine asylum claims have sometimes committed breaches of immigration law on securing entry to an EU state. The statute, in our judgment, is aimed at those who facilitate such illegal entry. On the face of the statute there is no such limitation as that for which Mr Kivdeh contends.
"18. In the course of his robust submissions to us this morning, Mr Kivdeh helpfully referred us to R. v Kapoor  EWCA Crim 435;  2 Cr App R 11 (p.125), in which the judgment of the court was given by Hooper LJ [the court then set out the passage from Kapoor at  set out above].
"19. As Mr Kivdeh pointed out to us, those cases were specific cases of immigrants who presented themselves on arrival to immigration officers, as the last passage of the judgment in Kapoor indicates. On the contrary, in this case what was alleged by the Crown was not the presentation of individuals to immigration officers in Spain saying "We want to go to the United Kingdom to claim asylum"; the case for the Crown was simply that facilitation was carried out to get people into Spain (as Mr Kivdeh put in his argument on sentence) through the use of forged documents. Therefore, the distinction made in Kapoor in our judgment does not apply to the instant case.
"20. We turn to the second point. It is, in our judgment, no answer to the offence charged that there may have been a parallel offence of conspiracy to commit an offence under s.25A. That may well have been the case. But it was, in our judgment, no objection to the preferment of a charge of conspiracy to contravene s.25(1)."
Discussion and conclusion on sections 25 and 25Aof the 1971 Act
The effect of the judge's ruling
"Before considering that remaining ground we permit ourselves to make certain observations as to the procedure adopted in the lower court. It is beyond question that an appeal will lie from a conviction entered upon a plea of guilty where that plea is a consequence of an earlier incorrect ruling in law. (See D.P.P. v. Shannon (1974) 59 Cr.App. R. 250,  A.C. 717.) We were told that in this case the judge was asked to rule upon the relevant matters of law under section 40(1) of the Criminal Procedure and Investigations Act 1996 at a pre-trial hearing. We were further told by counsel that little thought had been given to the procedure to be followed. The statute enables rulings of law, binding unless and until discharged, to be made before a plea is entered or a jury sworn, which in appropriate cases is a great advantage. It will, however, be important to ensure that the facts are fully and accurately before the Court, something which cannot always be achieved without oral evidence. Where oral evidence is not required it is preferable, if not essential, for the agreed facts to be written down if only because the ruling may become the subject of an appeal."
i) The judge did entirely understand the point in Kapoor and suggested that it was important, his word was "indicative", that the migrants were coming from France, and that the craft "was not heading for a port where UK border officials, immigration officials, would be present in order to receive claimants for asylum". He was no doubt right about the significance of these alleged facts, but the intended place of entry by the migrants was a matter of evidence, and therefore for the jury. He was not entitled to make any factual findings about it.
ii) The judge plainly regarded the guilty plea of the appellant to the section 24 offence with which he was charged in relation to the count 3 journey to 29 December 2019 as important. He does not explain why. Had he done so, he would have been driven to conclude that its potential significance was a matter for evidence and argument in a trial. The burden of the submissions before the judge on behalf of the appellant was that he was not guilty of the section 24 offence, and neither was anyone else in the boat. Mr. Brewer made the optimistic submission that the guilty plea should be excluded as irrelevant, or because it would have an adverse effect on the fairness of the proceedings, under section 78 of the 1984 Act. The correct legal analysis was that its importance was a matter of fact for the jury having heard evidence as to why it was entered. We shall return to this at the end of this judgment.
The safety of the convictions
i) The prosecution could not prove that one or more of the migrants were intending to disembark at a location other than a recognised port of entry, or otherwise evade immigration control;
ii) In any event, the appellant did not know and had no reasonable cause to believe, that the migrants were intending to commit an offence under section 24;
iii) The appellant's actions in being one of a number to help pilot the boat were de minimis in terms of "facilitation" and did not amount to the offence under section 25.
Discussion and conclusion on safety of convictions
The proper approach in this court to the guilty pleas
"It does not follow that a plea of guilty is always a bar to the quashing by this court of a conviction. Leaving aside equivocal or unintended pleas (which do not concern us here), there are two principal cases in which it is not. The first is where the plea of guilty was compelled as a matter of law by an adverse ruling by the trial judge which left no arguable defence to be put before the jury. So, if the judge rules as a matter of law that on the defendant's own case, that is on agreed or assumed facts, the offence has been committed, there is no arguable defence which the defendant can put before the jury. In that situation he can plead guilty and challenge the adverse ruling by appeal to this court. If the ruling is adjudged to have been wrong, the conviction is likely to be quashed. Contrast the situation where an adverse ruling at the trial (for example as to the admissibility of evidence) renders the defence being advanced more difficult, perhaps dramatically so. There, the ruling does not leave the defendant no case to advance to the jury. He remains able, despite the evidence against him, to advance his defence and, if convicted, to challenge the judicial ruling as to admissibility by way of appeal. If he chooses to plead guilty, he will be admitting the facts which constitute the offence, and it will be too late to mount an appeal to this court. For this important distinction see R. v Chalkley  2 Cr App R 79;  QB 848 , which on this point is clear law. That was a case in which the defendants had failed to persuade the trial judge to exclude evidence pursuant to s.78 of the Police and Criminal Evidence Act 1984 , and, faced with evidence which they judged to be difficult to overcome, had pleaded guilty, indeed in explicit terms which made it clear that they now admitted the conspiracy to rob which was charged. Giving the court's judgment, Auld LJ said this at 94 and 864:
"Thus, a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal escape from a verdict of guilty on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstance would normally be regarded as an acknowledgment of the truth of the facts constituting the offence charged."
That approach applied to this case
"…remain in such area (if any) at the port as may be approved for this purpose by an immigration officer.."
11.— Construction of references to entry, and other phrases relating to travel.
(1) A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained under the powers conferred by Schedule 2 to this Act or section 62 of the Nationality, Immigration and Asylum Act 2002 or on immigration bail within the meaning of Schedule 10 to the Immigration Act 2016.
(2) In this Act "disembark" means disembark from a ship or aircraft, and "embark" means embark in a ship or aircraft; and, except in subsection (1) above,
(a) references to disembarking in the United Kingdom do not apply to disembarking after a local journey from a place in the United Kingdom or elsewhere in the common travel area; and
(b) references to embarking in the United Kingdom do not apply to embarking for a local journey to a place in the United Kingdom or elsewhere in the common travel area.
(3) Except in so far as the context otherwise requires, references in this Act to arriving in the United Kingdom by ship shall extend to arrival by any floating structure, and "disembark" shall be construed accordingly; but the provisions of this Act specially relating to members of the crew of a ship shall not by virtue of this provision apply in relation to any floating structure not being a ship.
(4) For purposes of this Act "common travel area" has the meaning given by section 1(3), and a journey is, in relation to the common travel area, a local journey if but only if it begins and ends in the common travel area and is not made by a ship or aircraft which—
(a) in the case of a journey to a place in the United Kingdom, began its voyage from, or has during its voyage called at, a place not in the common travel area; or
(b) in the case of a journey from a place in the United Kingdom, is due to end its voyage in, or call in the course of its voyage at, a place not in the common travel area.
(5) A person who enters the United Kingdom lawfully by virtue of section 8(1) above, and seeks to remain beyond the time limited by section 8(1), shall be treated for purposes of this Act as seeking to enter the United Kingdom.
24.— Illegal entry and similar offences.
(1) A person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both, in any of the following cases:—
(a) if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave;
(b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either—
(i) remains beyond the time limited by the leave; or
(ii) fails to observe a condition of the leave;
(c) if, having lawfully entered the United Kingdom without leave by virtue of section 8(1) above, he remains without leave beyond the time allowed by section 8(1);
(d) if, without reasonable excuse, he fails to comply with any requirement imposed on him under Schedule 2 to this Act to report to a medical officer of health, or to attend, or submit to a test or examination, as required by such an officer;
(f) if he disembarks in the United Kingdom from a ship or aircraft after being placed on board under Schedule 2 or 3 to this Act with a view to his removal from the United Kingdom;
(g) if he embarks in contravention of a restriction imposed by or under an Order in Council under section 3(7) of this Act;
(h) if the person is on immigration bail within the meaning of Schedule 10 to the Immigration Act 2016 and, without reasonable excuse, the person breaches a bail condition within the meaning of that Schedule.
(1A) A person commits an offence under subsection (1)(b)(i) above on the day when he first knows that the time limited by his leave has expired and continues to commit it throughout any period during which he is in the United Kingdom thereafter; but a person shall not be prosecuted under that provision more than once in respect of the same limited leave.
(3) The extended time limit for prosecutions which is provided for by section 28(1) below shall apply to offences under subsection (1)(a) and (c) above.
(3A) The extended time limit for prosecutions which is provided for by section 28(1A) below shall apply to offences under subsection (1)(h) above.
(4) In proceedings for an offence against subsection (1)(a) above of entering the United Kingdom without leave,—
(a) any stamp purporting to have been imprinted on a passport or other travel document by an immigration officer on a particular date for the purpose of giving leave shall be presumed to have been duly so imprinted, unless the contrary is proved;
(b) proof that a person had leave to enter the United Kingdom shall lie on the defence if, but only if, he is shown to have entered within six months before the date when the proceedings were commenced.
25.---- Assisting unlawful immigration to member State
(1) A person commits an offence if he—
(a) does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a citizen of the European Union,
(b) knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual, and
(c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.
(2) In subsection (1) "immigration law" means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to—
(a) enter the State,
(b) transit across the State, or
(c) be in the State.
(3) A document issued by the government of a member State certifying a matter of law in that State—
(a) shall be admissible in proceedings for an offence under this section, and
(b) shall be conclusive as to the matter certified.
(4) Subsection (1) applies to things done whether inside or outside the United Kingdom.
(6) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.
(7) In this section–
(a) a reference to a member State includes a reference to a State on a list prescribed for the purposes of this section by order of the Secretary of State (to be known as the "Section 25 List of Schengen Acquis States"), and
(b) a reference to a citizen of the European Union includes a reference to a person who is a national of a State on that list.
(8) An order under subsection (7)(a)–
(a) may be made only if the Secretary of State thinks it necessary for the purpose of complying with the United Kingdom's obligations under the EU Treaties,
(b) may include transitional, consequential or incidental provision,
(c) shall be made by statutory instrument, and
(d) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
25A Helping asylum-seeker to enter United Kingdom
(1) A person commits an offence if—
(a) he knowingly and for gain facilitates the arrival or attempted arrival in, or the entry or attempted entry into, the United Kingdom of an individual, and
(b) he knows or has reasonable cause to believe that the individual is an asylum-seeker.
(2) In this section "asylum-seeker" means a person who intends to claim that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under—
(a) the Refugee Convention (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation)), or
(b) the Human Rights Convention (within the meaning given by that section).
(3) Subsection (1) does not apply to anything done by a person acting on behalf of an organisation which—
(a) aims to assist asylum-seekers, and
(b) does not charge for its services.
(4) subsections (4) and (6) of section 25 apply for the purpose of the offence in subsection (1) of this section as they apply for the purpose of the offence in subsection (1) of that section.