Rescued migrants can face prosecution

Asylum seekers who arrive illegally can be taken to court, judge rules after appeal by Sudanese men

Channel migrants who arrive in Britain after being rescued at sea can be prosecuted for illegal entry to the UK under new powers, the country’s most senior judge has ruled. Lord Burnett, the Lord Chief Justice, rejected appeals by three Sudanese men who had crossed the Channel in small boats and claimed that they could not be prosecuted for “knowingly arriving” in the UK “without entry clearance”.

CHANNEL migrants who arrive in the UK after being rescued at sea can be prosecuted for illegal entry to the UK under new powers, Britain’s most senior judge has ruled.

Lord Burnett, the Lord Chief Justice, rejected appeals by three Sudanese men who had crossed the Channel in small boats and claimed they could not be prosecuted for “knowingly arriving” in the UK “without entry clearance.” Their lawyers had argued they should be exempt from prosecution because entry clearance was not available to asylum seekers, while those who steered the small boat would not have been aware that migrants in the dinghy were acting illegally.

The case had threatened to undermine the Government’s 2022 legislation that was designed to close a loophole and allow for migrants who were rescued at sea to be prosecuted for illegal entry. Nearly all migrants are picked up at sea by Border Force, coastguards and RNLI lifeboats.

Tony Smith, former director-general of Border Force, 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 the Government unveiling its new bill next week 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 to a safe country, such as Rwanda, where their claim for asylum will be considered.

Two of the Sudanese men are alleged to have assisted unlawful immigration by steering dinghies containing other migrants across the Channel, while the third is charged with attempting to arrive in the UK in a dinghy. They challenged preliminary rulings made by Mr Justice Cavanagh at Canterbury Crown Court ahead of their trials. Their lawyers argued that the judge had incorrectly interpreted the new laws in the Nationality and Borders Act 2022.

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. Previously, migrants intercepted by the authorities or rescued while at sea could not be charged with knowingly entering the UK without leave.

Lawyers representing the man charged with attempting to arrive in the UK argued that 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.

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

In a ruling on Thursday, 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.”