Migrants can be prosecuted

Britain's most senior judge has ruled channel migrants who arrive in the UK after being rescued at sea can now be prosecuted for illegal entry to the UK.

The Lord Chief Justice, Lord Burnett, rejected appeals by three Sudanese men who claimed they could not be prosecuted for "knowingly arriving" in the UK "without entry clearance" after crossing the Channel in small boats.

Lawyers for the men had argued they should be exempt from prosecution because entry clearance was not available to asylum seekers, and that those who steered the dinghy would not have been aware that the passengers in the small boat were acting illegally.

Two of the men are alleged to have steered dinghies containing other migrants across the Channel, thereby assisting unlawful immigration. The third man is charged with attempting to arrive in the UK in a dinghy. The men challenged preliminary rulings made by Mr Justice Cavanagh at Canterbury Crown Court. Their lawyers arguing that the judge had incorrectly interpreted the new laws in the Nationality and Borders Act 2022.

The men's 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. Lawyers for the two men alleged with steering the small boats to the UK argued that the facilitator would have to be aware the conduct of the other person was criminal, in order to be charged with an offence of facilitating the illegal entry of another person to be committed.  

Previously, migrants intercepted by the authorities or rescued while at sea could not be charged with knowingly entering the UK without leave. However, Lord Burnett rejected the appeals and upheld Mr Justice Cavanagh's interpretation of the new laws. Sitting with Mr Justice Holgate and Mr Justice Bryan, he concluded 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."

Nearly all migrants are picked up at sea by Border Force, coastguards and RNLI lifeboats. In 2022 the government created legislation designed to close a loophole and allow for migrants who were rescued at sea to be prosecuted for illegal entry.

Former director-general of Border Force, Tony Smith, said: "It is a victory for common sense. It would have meant Border Force would have to treat migrants as passengers because they were not potentially illegal entrants, when clearly avoiding the ports of entry of Calais and Dover is illegal entry."

The judgment by Lord Burnett comes ahead of a Government unveiling of a new bill that will bar any migrants who seek to enter the UK illegally from claiming asylum. The new laws will mean that anyone entering the UK illegally will be detained and returned either to their home country or a safe country - such as Rwanda - while their asylum claim is considered.