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Immigration

Revised: 19 June 2018; Updated 14 July 2022|Legal Guidance, International and organised crime

 

Introduction

This guidance sets out the CPS policy on the prosecution of immigration offences. The guidance covers a wide range of offending including illegal entry into the United Kingdom (UK), facilitation of illegal entry, use and possession of false documentation and employment offences linked to illegal entrants. 

Prosecutors should note that even if criminal proceedings cannot be brought, a person may remain administratively categorised as an illegal entrant and still be subject to deportation or removed by the Home Office under section 3(5) or 4(2) Immigration Act 1971. This guidance also contains information on diversion by way of a Foreign National Offender Conditional Caution (FNOCC).

Immigration offences

Individuals and organised groups may commit a variety of offences when gaining or facilitating illegal entry into the UK. Some of the commonly prosecuted immigration offences are:

  • Entering the UK without leave contrary to section 24 Immigration Act 1971 (“the 1971 Act”) – see below for further details
  • Assisting unlawful immigration to a Member State or the UK contrary to section 25 of the 1971 Act – see below for further details
  • Possession of false identification documents with improper intention contrary to section 4 Identity Documents Act 2010
  • Entering the UK without a passport contrary to section 2 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004
  • Knowingly employing adults subject to immigration control contrary to section 21 Immigration, Asylum and Nationality Act 2006

For more information on these and other commonly prosecuted offences, see Annex 1: Tables of Immigration Offences.

Illegal entry and related offences 

Section 24 of the 1971 Act contained provisions for illegal entry offences that were summary only. Most of these offences remain on the statute book, but section 24 has been amended by the Nationality and Borders Act (NABA) 2022 to make provision for new offences. Alongside the existing offences, NABA has introduced two new offences that can be committed by simple arrival rather than entry, the latter having a technical legal definition set out in section 11 of the 1971 Act. It also increases the maximum sentence for these offences so that they are now triable in the Crown Court as well as the magistrates’ court. As these offences are now indictable, the Criminal Attempts Act 1981 applies, and it is therefore an offence to attempt to commit a section 24 offence.

Prosecutors should be mindful of the transitional provisions that are in place for the illegal entry offences prior to commencement of NABA. Thus, for any illegal entry offences committed before 28 June 2022, prosecutors should continue to charge cases under the provisions of the 1971 Act as they were before. 

Prosecutors should note the consent and jurisdiction issue in relation to offences of attempted arrival (see Jurisdiction section). For more information on these offences, see Annex 1.

NABA introduced two new offences into section 24. These are:

  • Section 24(D1) Arriving without entry clearance
    A person who is a non-British/Irish national or who does not have a right of abode, will normally require entry clearance (visa) prior to arriving in the UK. The provision now makes it an immigration offence knowingly to arrive in the UK where entry clearance is required under immigration rules. The evidence will need to address that no valid entry clearance was issued by the Secretary of State. It is for the defence to prove that the person had valid entry clearance.
     
  • Section 24(E1) Arrival without an Electronic Travel Authorisation (ETA)
    An ETA is a pre-departure check for a non-British/Irish person who does not require a visa when travelling to the UK. The provision now makes it an immigration offence not to have a valid ETA where one is required. The offence is committed when: 
    • a person is required under immigration rules not to travel to the UK without an ETA that is valid for the person’s journey to the UK; and
    • that person knowingly arrives in the UK without such an ETA.

This provision will commence on a date after the new Immigration Rules come into force. It is also now an offence to obtain an ETA by deception under section 24A(1)(ii) which is also triable either way.

The facilitation offence – section 25

Section 25 prohibits facilitation of a breach of immigration law. The breach need not constitute an offence. In Javaherifard and Miller [2005] EWCA Crim 3231 the court held “… it would be absurd if unlawful presence did not constitute a breach of immigration law. Section 1(2) of the 1971 Act sets out the general principles for those who have no right of abode. They “may live in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act …”. That carries with it the necessary implication that they may only live in the UK with permission and that without that they are in breach of immigration control in living here. Section 3 which contains the provisions for general immigration control, prohibits non-British/Irish citizens to enter without leave.

When referring cases to the CPS, Immigration Enforcement (IE) should identify the law that it is said to have been breached, which must be an immigration law within the meaning of section 25(2) Immigration Act 1971.

Depending on the facts of the case, except in cases of unlawful arrival, section 1(2) and/or section 3(1)(b) Immigration 1971 Act can be relied on separately or in combination to specify the breach of unlawful entry or remaining. Taken together these provisions ‘determine’ whether a person is entering or in the UK lawfully, and comprise “immigration law”: see R v Kapoor and others [2012] EWCA Crim 435 and R v Dhall (Harpreet Singh) [2013] EWCA Crim 1610. The provisions provide as follows:

  • Section 1(2): Those not having the right of abode in the UK may live, work and settle in the UK by permission and subject to such regulation and control of their entry into, stay in and departure from the UK as is imposed by the 1971 Act
  • Section 3(1)(b): Except as otherwise provided by or under the 1971 Act, where a person is not a British/Irish citizen they may be given leave to enter the UK (or, when already there, leave to remain in the UK) either for a limited or for an indefinite period

In almost all such cases, the breach of underlying law for the purposes of section 25 can and should be particularised by reference to both sections 1 and 3.

In cases involving facilitation of unlawful arrival, prosecutors should aver the relevant breach as being section 24(D1) or (E1). This is important, as sections 1 and 3 do not make any reference to unlawful arrival.

Proving an intended breach of immigration law

In Bina [2014] EWCA Crim 1444 it was held that section 25(1) Immigration Act 1971 is applicable as much to those who assist asylum seekers as to other individuals. The Court of Appeal held that it was plain that there was no limitation of section 25 to non-asylum seekers and that, 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 the UK. The court held that the statute is aimed at those who facilitate such unlawful entry.

Proving the intention to commit an act which amounts to a breach of immigration law is an essential element of the section 25 offence. In the context of offences involving vehicles and boats, this means proving a breach of the general principles in section 1 and 3 above which regulate entry into and stay in the UK, by seeking to facilitate arrival or entry into, or leave to remain in, the UK unlawfully.

Where a concealed method of entry is used, either by vehicle or boat, there should be no difficulty in proving an intention to breach immigration law, as in those cases the intention is to evade immigration controls altogether in order to secure entry into the country. However, where boats which are not carrying migrant passengers covertly are intercepted at sea, the position may be more complex.

Evidential considerations

Prosecution Strategy

It is important that there is early engagement with the CPS from the outset of the investigation to develop a prosecution strategy and provide early advice (EA) where appropriate. This will include advising on who should be treated as a suspect, victim or witness and the public interest in prosecuting or continuing a prosecution where Immigration Enforcement consider that administrative removal is appropriate. Early engagement is crucial where international enquiries and early financial investigation is required.

People smuggling offences are “lifestyle offences” for the purposes of proceeds of crime. It is therefore important that financial investigation is carried out in parallel. Consideration should be given to a parallel financial investigation in relation to the other offences, particularly where there is an early suspicion of financial gain.

Prosecutors should be aware of section 6 of the Code for Crown Prosecutors, in particular the factors in paragraph 6.1, when selecting the appropriate charges.

Evidence

Vehicles

The following checklist may assist in setting out potential sources of evidence where unlawful immigration is facilitated by vehicles:

  • Photos/body-worn video (BWV) footage of the facilitated person(s) including clear images of any concealments
  • Phones from the suspects/facilitated persons
  • Tachograph evidence
  • SatNav/GPS tracking
  • CCTV / Automatic Number Plate Recognition (ANPR) evidence of route of the lorry and any “convoy vehicles” following to facilitate dispersal of facilitated persons
  • Temperature of refrigerated freight at point of departure and time of seizure
  • Travel tickets, receipts, any notes, CMRs (road consignment note)
  • Cash / credit cards / bank cards found
  • Locking mechanisms on the vehicle – whether locks are broken, seals have been broken and resealed, etc
  • An interview covering in detail the route the suspect took, destination, where the load was put on (if it is a lorry/van), who put the load on, who owns the vehicle, who maintains it, the number of stops during travel and where the suspect stopped. All of this is crucial if a request for mutual legal assistance is to be made
  • Contact ports/Eurotunnel to see if the suspect has made previous trips and details of those trips
  • Foreign convictions
  • Intelligence from other agencies and from International Liaison officers
  • Financial investigation (in UK and overseas) to support confiscation proceedings
  • Evidence of gain (financial or gain by inference)

Boats

The following checklist may assist, additionally, in setting out potential sources of evidence where unlawful immigration is facilitated by boat:

  • Drone footage – this may assist with the role of the suspect in piloting or otherwise controlling the small boat
  • First responder accounts from the Maritime and Coastguard Agency (MCGA), UK Border Force (UKBF) or ambulance crews identifying the role of passengers on the vessel
  • Phone evidence – these may document the suspect’s role in steering or loading the facilitated persons onto the boat. The meta data can be used to prove where the boat was at the time the images were created. This may also assist with the purpose of putting the boat to sea and any planning. It is critical to attribute phones to suspects if possible
  • Virtual Private Networks or encryption – this may demonstrate a sophisticated and/or clandestine approach
  • Where exactly the boat was intercepted, how far offshore, at what time, in what direction it was heading, the weather conditions and tides
  • Whether those on board were wearing safety equipment such as buoyancy aids, together with evidence as to the suitability or otherwise of the boat for the journey, as this is relevant to the risk of harm involved (and may be relevant to sentencing)
  • Accounts from those on the boat about their intentions / who controlled the boat, and any admissions made in interview
  • Whether there is a previous history of crossings or piloting boats
  • Whether anyone on the boat made application for asylum and their current status
  • Evidence that might prove or infer gain. Here, phone downloads might be helpful, particularly SMS or social media, in evidencing contact with persons already in the UK
  • Evidence from forensic examination of the vessel, for example fingerprints from the tiller or the engine housing
  • An inventory (with photographs in situ) of all of the items found in the boat, including details of life jackets/ flares/compass, etc
  • Details of how much petrol was in the engine, and whether there were spare cans (and, if so, how many)
  • A note of the state of the boat and engine (including whether there are any leaks, etc.) 
  • In addition to the evidential considerations set out above, prosecutors should in all cases be live to any relevant unused material pertaining to the facilitated individuals that may be in the hands of third parties such as the Home Office, e.g. any records held pertaining to the facilitated individuals’ claims to stay in the UK, the result of those claims, their comments upon detection, etc. This material may also have evidential value
  • There are potential challenges in relying on facilitated persons as witnesses; it is important to seek other independent evidence on which a case can be built. However, if the decision is taken to rely on evidence from a facilitated person who is not in the UK legally and is subject to removal by the Home Office, prosecutors may – with terms approved at least at DCCP level – seek to make representations to the Home Office setting out why the removal should be delayed until the witness can give evidence. This can be facilitated by the investigator when they become aware of the intended removal and thus who is handling the case. Representations to the Home Office should cover issues such as:
    • The importance of the prosecution;
    • The significance of the witness’ evidence;
    • Whether it would be practical for the witness to be removed, and then to give evidence by video link; and
    • If not, whether it would be practicable for the witness to be removed and then brought back to the UK to give evidence at trial, bearing in mind the likely cost.

Documentary Evidence

Section 32(2) of the Immigration Act 1971 provides for documents made or given by the Secretary of State or signed by him or on his behalf, to be received in evidence. Thus, correspondence from the Home Office to immigrants may be admissible in its own right.

The admissibility of other records, documents etc. are subject to the law of evidence, in particular sections 117 and 118 of the Criminal Justice Act 2003. This includes other Home Office records not falling within the scope of section 32.

Difficulties can arise when evidence is required as to the status of an illegal entrant who has already been deported. This evidence is a vital ingredient of the offence in respect of a person charged with assisting unlawful immigration.

Evidence is usually adduced of a list of legal entrants from which the particular illegal entrant’s name will be missing. The court is then asked to draw the simple inference that absence from the list equates with illegality. The list must be introduced by a Home Office official responsible for the compilation of the list, as the list is not automatically admissible: the negative inference is not an exception to the hearsay rule: R v Patel [1981] 3 All ER 94. The HO official should give evidence as to how the list was compiled and confirm its accuracy: DPP v Leigh [2010] EWHC 345 (Admin).

Common Law Defences

When reviewing immigration offences, prosecutors should consider whether there is clear evidence of a credible common law defence of duress or duress of circumstances.

Prosecutors should bear in mind that illegal immigration is often inextricably linked to human trafficking and organised crime. It is for the defence to raise sufficient evidence of duress and/or duress of circumstances to allow it to be considered by the jury. The legal burden then falls upon the prosecution to prove beyond reasonable doubt that the defendant was not acting under duress.

The UK has positive obligations under Article 4 of the European Convention on Human Rights to take operational measures to protect victims, or potential victims, of trafficking. This includes a duty to investigate, penalise and prosecute traffickers. See VCL and AN v United Kingdom (Applications 77587/12 and 74603/12) [5 July 2021].

For more information, see the Duress and Necessity legal guidance.

Statutory Defences

When applicable, prosecutors should consider the following statutory defences:

  1. Section 31 of the Immigration and Asylum Act 1999 – whether the immigration offence was committed as a necessary part of a refugee’s journey to the UK.
  2. Section 2 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 – ‘reasonable excuse’ for failing to have an immigration document at a leave or asylum interview.
  3. Section 45 of the Modern Slavery Act (MSA) 2015 – whether an offender may have been forced, coerced or deceived into committing an offence who might be a victim of modern slavery. 
  4. Sections 25BA and 25BB of the Immigration Act 1971, as introduced by the Nationality and Borders Act 2022, where there is rescue at sea or where individuals may be stowaways. 

1. Section 31 Immigration and Asylum Act 1999

Section 31 of the Immigration and Asylum Act 1999 (IAA) provides a statutory defence for refugees committing particular offences, providing they satisfy stated conditions.

The applicable offences under section 31(3) are:

  • Part 1 of the Forgery and Counterfeiting Act 1981 (forgery and connected offences)
  • Section 24A of the Immigration Act 1971 (use of deception to obtain or seek to obtain leave to enter or remain or to secure avoidance, postponement or revocation of enforcement action)
  • Section 26(1)(d) of the Immigration 1971 Act (falsification of documents)
  • Sections 4(1) and 6(1) of the Identity Documents Act 2010

The conditions that must be satisfied for the defence to apply are set out at section 31(1) and (2).

“Refugee”, defined in Article 1 of the Refugee Convention 1951, is a person who has left their own country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

Under section 31(5) a refugee is not entitled to this defence in relation to any offence committed after making a claim for asylum. Consequently, a defendant who enters the country either clandestinely or legally, claims asylum, and then obtains false documents for use in attempting to travel to another country, would be outside the scope of section 31.

Where asylum seekers arrive or enter through the use of false documents (whether by boat, commercial airline or some other means), particular consideration will need to be given to which offences are charged. They will be prima facie guilty of both a section 24 offence and a false document offence. However, section 31 will only afford a defence to the false document offence.

Interpretation of section 31

Section 37(4) of NABA provides that a refugee cannot claim Article 31 protection when in transit leaving the UK.

Section 37(1) of NABA provides that a refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened, if they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country. Relevant factors to assess when considering if a defence under section 31 is made out, having regard to section 37 include the following:

  1. What were the circumstances of their journey to and through the transiting country or countries? For example, if they were concealed in a lorry, did they have the opportunity to seek protection?
  2. Looking at all the circumstances:
    • Was the person in the course of fleeing from persecution or indiscriminate violence? 
    • Were they in transit?
  3. Did they travel through a country/countries which are signatories to the Refugee Convention?
  4. How long did they stay in the transit country/countries?
  5. What were the reasons for delaying seeking protection?

In the case of R v Asfaw [2008] UKHL 31 the House of Lords observed that it is permissible to charge a defendant both with an offence to which the section 31 defence applies and with an offence to which it does not. However, if the second charge is based on the same conduct and is included in an indictment in order to prevent the defendant from relying on the section 31 defence, there would be strong grounds for arguing that this is an abuse of process.

In SXH v The CPS [2017] UKSC 30, the Supreme Court considered whether a suspect’s entry into the UK as an asylum seeker and the decision to prosecute her for entering with false travel documentation (an offence which could attract the section 31 statutory defence) engaged Article 8 of the ECHR. The Court held that the decision to prosecute did not amount to a breach of Article 8, observing that “it is difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of committing a criminal offence could itself be a breach of that person’s human rights”.

Burden and standard of proof

The court in R v Mateta [2013] EWCA Crim 1372 provided a useful summary of the main elements of the defence, including the burden and standard of proof, as set out in R v Makuwa [2006] EWCA Crim 175, although should be read in the light of NABA:

  • The burden on the defendant as far as their refugee status is concerned is merely an evidential one i.e. they must adduce sufficient evidence to raise the issue. (See Makuwa [21, 38] for the elements that must be addressed and how the jury should be directed on them: a well-founded fear of persecution; fear based on one of the Convention reasons.) The prosecution must then prove beyond reasonable doubt that they were not a refugee. But in cases where the Secretary of State has refused an asylum application, the legal burden rests on the defendant to establish on a balance of probabilities that they are a refugee (see also section 31(7) IAA).
  • In respect of the matters in sections 31(a), (b) and (c) and section 31(2), the defendant has a legal burden i.e. must prove on a balance of probabilities that:
    • They did not stop in any country in transit to the UK for more than a short stopover; or, alternatively, they could not reasonably be expected to have sought protection under the Refugee Convention in countries outside the UK in which they were stopped; and
    • They presented themself to the authorities in the UK “without delay”, unless it was explicable that they did not present themselves to the authorities during a short stopover in this country when travelling through to the nation where they intended to claim asylum; and
    • They had good cause for their illegal entry or presence in the UK; and
    • They made a claim for asylum as soon as was reasonably practicable after their arrival in the UK, unless it was explicable that they did not present himself to the authorities during a short stopover in this country when travelling through to the nation where they intended to claim asylum.

Information from Immigration Enforcement (IE) – Criminal and Financial Investigation (CFI) unit

The CPS is reliant upon the Immigration Authorities for information relevant to an assessment of whether a defence under section 31 may apply. SXH v CPS [2013] EWHC 71 (QB) confirmed that it is “rational and proportionate that the CPS should depend upon the relevant agencies and departments to keep them informed” [85].

In all cases in which a section 31 defence may apply, the information relevant to an assessment should be provided as early as possible prior to charge and should include:

  • Any credible evidence that the suspect has a section 31 defence available to them. This should cover all the elements of the defence set out above, including whether they are a refugee and the outcome of any application for asylum.

Refugee Status determined by the Home Office

If a suspect is a refugee and the Home Office determines that the other conditions in the section 31(1) and (2) criteria are met, no charges should be brought.

Where CFI submit a case for charging advice on the basis that the section 31(1) and (2) conditions have not been met, prosecutors must carefully consider the evidence submitted. Pursuant to paragraph 4.6 of the Code for Crown Prosecutors, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

If the suspect is not a refugee, the defence is not available, regardless of whether they fulfil the other conditions. It will be a matter for IE to consider deportation/removal and/or refer the case to the CPS for a charging decision.

In accordance with paragraph 3.6 of the Code, prosecutors have a duty of continuing review and must take account of any change in circumstances, such as any further information that comes to light regarding the suspect’s refugee status and asylum claim.

Refugee Status yet to be determined

Where a suspect's refugee status is yet to be determined or is the subject of an appeal to the Immigration Appellate Authority, it would normally be appropriate to await the outcome of the asylum proceedings before making a decision on charge, if consideration is being given to charging one of the section 31(3) listed offences. This will usually be the case where CFI indicates that a decision will be made about a suspect’s refugee status within a reasonable amount of time.

However, in some cases refugee status can take several years to determine, and it is advisable that liaison takes place with the case officer and the Home Office to ascertain when a decision will be reached, as this may impact on the decision to charge.

An undetermined asylum application is not a barrier to prosecution and prosecutors should consider all the circumstances of the case in deciding whether to await the outcome of the asylum application or to proceed to charge. Prosecutors should have sight of the suspect’s screening interview and Immigration Enforcement reports.
The following factors, for example, may be relevant:

  • A time limit in which the offence must be charged, which might expire before the asylum determination
  • A risk of the suspect absconding pending the asylum determination
  • The suspect has already caused delay by, for example, providing multiple contradictory accounts, a period of absconding, or the deliberate destruction of identity documents to hinder enquiries into their country of origin

In cases where the prosecution accepts that the suspect satisfies all of the other conditions in sections 31(1) and (2), and the only issue is the suspect’s refugee status, no offences listed in section 31(3) should be charged until the status is determined. No Further Action should be taken in these cases, but the suspect should be given a re-instatement warning, in the event that refugee status is not granted.

Trial

In the event that a suspect is charged prior to determination of their refugee status, at the earliest possible court hearing, and prior to trial, the officer in the case should be asked to provide a written update on the defendant's refugee status.

If the defendant claims to be a refugee and no determination has been made, the Crown's position should be that while not accepting the claim or making any concessions in respect of their refugee status, the Crown will not seek to establish that they are not a refugee for the purpose of the criminal trial. In such cases there will be no issue for the jury to decide and no need to explain the term: R v Makuwa [2006] EWCA Crim 175 [37].

The issue at trial, in terms of the statutory defence, will be insufficient evidence of compliance with one or more of the other conditions in sections 31(1) and (2). For example, the defendant may or may not be a refugee, but the prosecution can prove they did not come directly from the country of persecution, or there was an unreasonable delay before they presented himself to the UK authorities. The defence and the court should be provided with a copy of R v Makuwa, to ensure that all parties are aware of what facts give rise to a section 31 defence, the burden and standard of proof and how the jury should be directed.

Appeals based on section 31

Section 31(8) makes the statutory defence retrospective in its application. A person who was convicted of an offence to which section 31 applies, before it came into force, but at no time during the proceedings for that offence argued that they had a defence based on Article 31(1), may apply to the Criminal Cases Review Commission.

There have been a number of appeals based on an accused’s representative’s failure to advise them about the availability of the section 31 defence: see Leveson LJ’s comments in R v Mateta [24] and R v AM and Others [2010] EWCA Crim 2400 [10, 56] on the obligations of defence representatives.

Prosecutors should therefore carefully consider whether accounts given by asylum seekers could give rise to a defence, so as to minimise the risk of successful appeals based on the appellant’s failure to properly put forward a section 31 defence at trial. If a defence is likely to be raised, the CFI officer in the case should be requested to obtain evidence on the refugee status and asylum claim: see the sections above on determining a refugee’s status.

2. Statutory defences to the offences under section 2 Asylum and Immigration (Treatment of Claimants etc.) Act 2004

Section 2 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 creates two offences of not having an immigration document at a leave or asylum interview, relating to the person and any dependent children: see the Tables of Immigration Offences in Annex 1.

Sections 2(4) and 2(5) of the Act contain the main statutory defences to these two offences.

The Act does not define ‘reasonable excuse’ but section 2(7) excludes deliberate destruction or disposal from amounting to a reasonable excuse for non-possession at interview, unless it was beyond the control of the entrant or for a reasonable cause. Reasonable cause does not include delaying the handling or resolution of a claim or application, increasing its chances of success, or complying with the instructions or advice of a facilitator (agent), unless it is unreasonable to expect non-compliance with the instructions or advice.

The CPS is reliant upon Immigration Enforcement for information relevant to an assessment of whether a section 2 defence might apply. In cases where a suspect makes an assertion that an agent told him to destroy or hand over their passport, this should be scrutinised by investigators.

Interpretation of the section 2 defences

R v Navabi and Embaye [2005] EWCA Crim 2865 confirms that the burden of proving the defence is on the defendant and it is a legal burden i.e. on the balance of probabilities [29-30].

In Thet v DPP [2006] EWHC 2701 (Admin) the court clarified that the document referred to in subsections (3) and (6) is a genuine document. Therefore, if the person enters the UK on a false passport but fails to produce it at interview, it is a reasonable excuse for not providing a document under section 2(6)(b) that it was impossible for them to obtain a genuine passport in their country of origin.

In R v Mohammed and Osman [2007] EWCA Crim 2332 the court held that the defence applies if:

  • The person is unable to obtain a genuine travel document because of the political situation or lack of issuing facilities in the country of origin
  • The genuine travel document is stolen or destroyed en route, or in the UK, through no fault of the applicant

Refugee cases where the section 2 defence does not apply

The court in R v Navabi confirmed that although the offence created by section 2 falls within the ambit of Article 31 of the Refugee Convention, neither Article 31 nor section 31 of the Immigration and Asylum Act 1999 can provide a defence to a section 2 charge, as Parliament had not fully incorporated Article 31 into domestic law.

In refugee cases where the section 2 defences do not apply, prosecutors should apply the approach to charging decisions set out in the section on the Public Interest below. This will ensure that the purposive and humanitarian aims of the Refugee Convention are borne in mind when considering the public interest.

3. Section 45 Modern Slavery Act 2015

Section 45 of the Modern Slavery Act 2015 provides a defence for victims of slavery or trafficking who are compelled to commit criminal offences.

The defence applies to all offences in the Tables of Immigration Offences in Annex 1, including the new offences, save for the offences under section 25 of the Immigration Act 1971 (Assisting unlawful Immigration) and section 32 of the Offences Against the Person Act 1861 (endangering safety of railway passengers).

See the legal guidance on Modern Slavery, Human Trafficking and Smuggling for more detailed information.

4. Statutory defences / exclusions to the facilitation offences (s25, s25A) under sections 25BA and 25BB 

NABA introduced a new exclusion and two defences into the 1971 Act at sections 25BA and 25BB

The exclusion means that a person or organisation does not commit an offence of facilitation if the act is done by, on behalf of, or co-ordinated by Her Majesty’s Coastguard or an overseas equivalent. This provides protection not only for organisations such as the Royal National Lifeboat Institution (RNLI), but individual seafarers who respond to mayday relays.

These defences to the offences of facilitating illegal entry or the entry of asylum-seekers apply in circumstances where: (1) a person rescues another person at sea, or (2) a ship’s master carries a stowaway into the UK or a person on board a ship assists a stowaway for humanitarian reasons.

Jurisdiction for offences committed in UK territorial waters

Where an offence is wholly or partly committed at sea, prosecutors should consider the question of jurisdiction. 

Under the Territorial Waters Jurisdiction Act 1878 (‘the 1878 Act’), UK territorial waters extend 12 miles out to sea; Territorial Sea (Baselines) Order 2014 (SI 2014 No. 1353); Territorial Sea Act 1987.

At common law, the courts of England and Wales have jurisdiction to try a crime where a substantial measure of the activities constituting the crime take place within the jurisdiction, save where it can seriously be argued on a reasonable view that the offences should be dealt with by another country: Smith (No. 4) [2004] EWCA Crim 631. Thus, there is jurisdiction to prosecute offences committed outside England and Wales where nonetheless the final element or a substantial measure of the activities were within the territory. The substantive offence contrary to section 24, for instance, is completed upon arrival or entry in England or Wales and therefore there is jurisdiction to try the offence even if other elements of the offence were committed outside England or Wales.

An attempt to commit a section 24 offence however, or some cases contrary to section 25, may take place at sea. In addition to considering the common law position prosecutors should consider the following. 

The Merchant Shipping Act 1995 provides jurisdiction in respect of offences committed on ships. However, that legislation covers offences committed at sea either by UK nationals on ‘foreign’ registered ships or committed by ‘foreign’ nationals on UK ships (which would include offences committed e.g. on UKBF or RNLI boats). This would be unlikely to apply in immigration cases involving non-British nationals using boats.

The 1878 Act grants jurisdiction of the Admiralty over all offences “punishable on indictment” committed in UK territorial waters. This is the case whether or not the suspect is a British subject or where the ship is registered. “Punishable on indictment” relates to any indictable offence: either-way and indictable-only offences. 

Section 46 of the Senior Courts Act 1981 confers jurisdiction for criminal proceedings on indictment from the Admiralty to the Crown Court. For either-way offences dealt with summarily, section 2 of the Magistrates’ Court Act 1980 gives jurisdiction to the magistrates’ courts in respect of all either-way offences. Thus, either-way offences committed in UK territorial waters can be dealt with either in the magistrates’ or Crown court in the usual way, subject to consent for prosecution being obtained as set out below.

Accordingly, prosecutors should be aware that there does not appear to be a statutory basis for any court in England and Wales to have jurisdiction over summary offences committed by non-UK nationals on board non-UK vessels in UK territorial waters. 

Conspiracy

A conspiracy may involve the commission of an act by one or more of the parties, or the happening of an event, in a place outside England and Wales. This situation is covered by section 1A of the Criminal Law Act 1977 which provides that where (a) that act or event would be an offence by the law of that place and (b) it would also be an offence here (but for the fact that it takes place outside the jurisdiction), then a person in England and Wales who becomes a party to the agreement or, being a party, does anything in pursuance of the agreement (even before its formation) can be charged with conspiracy contrary to section 1(1) of the Criminal Law Act 1977. Note, however, prior consent of the Attorney General is required to prosecute offences to which section 1A applies.

For further guidance on obtaining the consent of the Law Officers see guidance on Consents to Prosecute.

Consent to prosecution for Admiralty offences

Prosecutors should be aware of the procedural requirements for consent to prosecute in respect of some Admiralty offences. This applies to indictable-only or either-way offences committed in UK territorial waters, including under the Criminal Attempts Act 1981, such as attempted unlawful arrival where a boat is stopped in UK territorial waters and also the Offences Against the Person Act 1861. However, there is no requirement to obtain consent for a section 25 or 25A facilitation offence; see section 28(2A) of the 1971 Act. 

Section 3 of the 1878 Act requires that prosecutors obtain consent from ‘one of Her Majesty’s Principal Secretaries of State’ before a prosecution can be instituted for an offence within the jurisdiction of the Admiralty, where the defendant is not a UK citizen. This means a Secretary of State. 

Prosecutors should follow the process set out in the legal guidance on Consents to Prosecute, including the guidance on the timing of consent. An application using the template in Annex 3 of that guidance should be prepared, setting out why the CPS conclude the Full Code Test is met. In completing Annex 3, the prosecutor should also address: the nationality of the defendant; and whether anything has been identified in the course of the investigation that would suggest there may be concerns on the part of any foreign government were this defendant to be prosecuted for the offence alleged. The application should be authorised by a CCP or DCCP. It should be sent to the Directorate of Legal Services, where possible putting them on notice in advance about the fact that an application is to be submitted and the timescale in which a decision is required. The Secretary of State should be asked to provide a signed certificate to the following effect:

I HEREBY CONSENT to the prosecution of xxxxxxx of xxxxx (DOB/address) for an offence or offences contrary to the Immigration Act 1971, committed within the territorial waters of the United Kingdom, and certify that the institution of such proceedings is in my opinion expedient.

Public Interest considerations

General approach

When assessing whether a prosecution is required in the public interest, prosecutors must follow the approach set out in section 4 of the Code for Crown Prosecutors, in particular the factors listed in paragraph 4.14.

The following additional public interest factors may be relevant when making the decision to prosecute:

  1. Whether the removal of the offender (or overstayer) is a proportionate response. 
  2. Whether the suspect may be willing to assist in the investigation or prosecution of others, 
  3. The personal circumstances or characteristics of the suspect – for example, their age or the state of their physical or mental health, or other vulnerabilities. This information should be provided by Immigration Enforcement CFI. However, prosecutors can also consider information from other sources including the police, other investigators, the suspect or those acting on their behalf.

When assessing whether the public interest test is met, prosecutors should adopt the following approaches depending on the nature of the case.

1. Approach in cases involving refugees

The defence under section 31 of the Immigration and Asylum Act 1999 reflects the UK’s obligations under Article 31 of the Refugee Convention. This defence only applies to specific offences. Section 37(1) of NABA also sets out Parliament’s intention that there should be no immunity from penalty where protection could reasonably have been sought in a different country during the defendant’s journey.

In cases where there is no statutory defence, prosecutors should have regard to circumstances which are relevant to Article 31 of the Refugee Convention when considering the public interest stage. Pursuant to paragraph 2.10 of the Code for Crown Prosecutors, prosecutors must have regard to the obligations arising from international conventions. 

Specifically, prosecutors should consider the factors listed below in relation to Article 31. This will ensure that the humanitarian aims of the Convention are appropriately taken into account when deciding whether or not to prosecute. For more information on determining the approach to be taken when determining whether a suspect is a refugee, see the section above. 

Factors relating to Article 31 of the Refugee Convention

The person:

  • Is a refugee within the meaning of the Convention: see Article 1
  • Came directly from a territory where their life or freedom was threatened in the sense of Article 1
  • Presented themselves without delay to the authorities
  • Showed good cause for their illegal entry or presence
  • Committed the offence(s) reasonably or necessarily in the course of flight from persecution or threatened persecution

The burden and standard of proof to be applied in considering these factors should be the same as would apply to a section 31 defence at trial: see the section on Statutory Defences above.

The presence of all of these factors will make it less likely that a prosecution is required. However, unlike statutory defences, they will not provide an automatic bar to prosecution. 

In all cases where the suspect is a refugee and the public interest test is applied, prosecutors must outline their approach to Article 31, including the reasons for their decision on the public interest, in their case review. 

For a structured approach to assessing the merits of a section 31 defence, see para 9(4) of R v Dastjerdi [2011] EWCA Crim 365 (applied in R v PK [2017] EWCA Crim 486 and R v Idahosa [2019] EWCA Crim 1953).

The Article 31 factors will need to be weighed with any other factors identified in the case, to form an overall assessment of the public interest. The factors listed below under “Administrative removal” will be relevant. Additionally, the following factors should be considered: 

  • Evidence that the suspect was previously refused entry clearance or a prior application for an Electronic Travel Authorisation (ETA) to the UK.
  • The offending compromised the genuine identity of another person, causing them loss, distress, or inconvenience (obtaining leave by deception / entering without leave through fraud).
  • Evidence of provable involvement with an organised crime group behind the criminality.

Relevant public interest factors

The following public interest factors would be considered relevant when making the decision to prosecute: 

  • A likely sentence of less than 12 months’ imprisonment
  • Where no aggravating factors in favour of prosecution would apply
  • Whether, in the absence of other aggravating factors, the offender (or overstayer) might be dealt with more judiciously by removal 
  • Whether the suspect may be willing to assist in the investigation or prosecution of others (in accordance with the Serious Organised Crime & Police Act 2005), and who would need to remain in the UK for this purpose
  • Any other issue arising from the Code for Crown Prosecutors. In particular, under paragraphs 4.14(b) and (d), the personal circumstances or characteristics of the suspect – for example, their age or the state of their physical or mental health, or other vulnerabilities – are factors which may mean it is less likely that a prosecution is required. This information should be provided by Immigration Enforcement CFI. However, prosecutors can also consider information from other sources including the police, other investigators, the suspect or those acting on their behalf. 

Section 24 illegal entry and arrival offences

Factors tending in favour of prosecution (aggravating factors)

  • The level of culpability involved in securing illegal entry (this might include other relevant offences committed alongside immigration offences) 
  • Offenders who are in breach of a Deportation Order and those who are repeat offenders who have previously been removed
  • Offenders who are in breach of a decision or order to exclude them from the UK or to ban them from re-entry for a specified period
  • Where the suspect has previous convictions or has committed other offences in addition to the immigration offending
  • A potentially substantial confiscation order and the likelihood of timely enforcement
  • Evidence of violence / harm or risk to life to others
  • Evidence of money flows or financial advantage / gain or benefit.
  • Evidence of repeated attempts to enter the UK illegally 
  • Evidence of document destruction (where not charged as a separate offence)
  • Evidence that the suspect could have sought asylum in a safe country before beginning the final leg of their journey
  • Evidence that the suspect was previously refused entry clearance or a prior application for an Electronic Travel Authorisation (ETA) to the UK.
  • The offending compromised the genuine identity of another person, causing them loss, distress, or inconvenience (obtaining leave by deception / entering without leave through fraud)
  • Evidence of provable involvement with an organised crime group behind the criminality

In relation to the section 24 illegal entry and arrival offences, it may be that those refugees, or presumptive refugees, who commit criminal offences as a necessary part of their journey to the UK are not prosecuted, provided the conditions in section 31(1) (as interpreted in Asfaw) are met.

Where a claim for asylum has been made, factors in support of prosecution may be: 

  • non-meritorious claims 
  • additional factual elements providing the context of the offence or particular circumstances of the unlawful arrival in the UK, indicative of higher culpability or higher seriousness of the offending 
  • factors relating to the suspect, whether relating to the suspect’s circumstances in their country of origin or to their journey, indicative of higher culpability

Examples may include asylum seekers with a particular organisational role, such as the facilitation of the buying of the boat in Bani and others [2021] EWCA Crim 1958, or the different seriousness in conduct in a case like Mirahessari and Vahdani [2016] EWCA Crim 1733.

Section 25 / S25A Facilitation offences 

Factors tending in favour of prosecution (aggravating factors)

  • Where there is evidence that the suspect has greater involvement and a more significant role in planning or organising the facilitation of migrants and the offence is not an isolated incident
  • Where there is evidence of facilitation beyond the defendant having their hand on the tiller for a short period, such as taking a substantial or lead role in piloting the vessel, and/or arranging the journey or sourcing the boat, a charge of facilitation would be more appropriate than a section 24 illegal entry offence
  • A higher level of culpability of migrants in boats or lorries, in particular between those who travel on RHIBs with the intention or expectation that they will be intercepted and those whose intention is to avoid immigration controls altogether through concealed entry
  • A higher level of culpability involved in securing or assisting the illegal entry of individuals or asylum-seekers to the UK or a member State in breach of immigration laws (this might include other offences committed alongside immigration offences)
  • The offending compromised the genuine identity of another person, causing them loss, distress or inconvenience
  • Access to public services is obtained, which would not otherwise be available
  • The suspect’s actions caused harm to others, or placed other persons’ life, health or safety at risk (including those who rescue migrants at sea). Those facilitating migrants crossing the English Channel are likely to create a higher risk of such harm
  • Disruption to services, such as those relating to train services in the Channel Tunnel, or disruption to other shipping / vessels in the channel Economic loss, which may, for example, be linked to any disruption of services
  • The offending caused a significant investment of police or Immigration resources

Factors tending against prosecution (mitigating factors)

  • Whether there is any statutory defence available to the offence charged, which has not been met on the facts of the case, and the reasons why the defence is not met, for example whether a pilot is a refugee or presumptive refugee. [Note that a person who is granted refugee status can still be guilty of an offence of entering the UK without a passport under section 2 Asylum and immigration (Treatment of Claimants etc.) Act 2004.]
  • The absence of any gain (whether financial or otherwise) 
  • In a case where the evidence suggests that a facilitator is acting to safeguard other passengers, it may be in the public interest to charge the lesser section 24 offence rather than section 25 

Article 31 does not necessarily apply to these offences in the same way as to the section 24 offence, as the Refugee Convention provides protection for refugees themselves, rather than those who assist them (whatever their motives may be). 

However, if an asylum claim has been made by someone charged with a facilitation offence, prosecutors should consider their culpability in the facilitation offence.

In those circumstances, their actions may be closer to being “necessarily committed in the course of flight from persecution”, and therefore covered by Article 31.

The principles underpinning the Refugee Convention to which the UK is a signatory are relevant to the assessment of the public interest. 

2. Approach in all non-refugee immigration cases

For those without a claim for protection, the Refugee Convention should have no bearing on the decision to charge or prosecute. 

In some cases, it may not be in the public interest to prosecute suspects who have endured persecution but who are technically not refugees, because their persecution does not amount to a Convention reason. 

Prosecutors should first consider whether the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by an alternative to prosecution. This applies to any case involving a non-refugee who is in the UK illegally, whether they are accused of an immigration or other type of offence. The alternatives available are:

  • Administrative removal; or
  • A Foreign National Offender Conditional Caution (FNOCC).

When considering these alternatives, prosecutors will have regard to the fact that there is a substantial cost to the public when a foreign national offender, who needs to be managed in the community or kept in immigration detention, remains in the UK. See paragraph 4.14(f) of the Code: prosecutions should be a proportionate response.

Administrative removal

The person in question must agree to administrative removal. However, persons who are suspected of committing a section 2 offence (not having a travel document at a leave or asylum interview) or an offence which may attract a defence under section 31 of the Immigration and Asylum Act 1999, are likely to be seeking leave to remain or asylum. Accordingly, it is not likely that they would agree to administrative removal. It will be for the Home Office to determine whether administrative removal – rather than a prosecution – is the most appropriate action. Additionally, if a person is a genuine refugee, they should not be administratively removed.

The factors relevant when deciding whether administrative removal is in the public interest are as above under The Public Interest: General Approach. An additional factor is a likely sentence of less than 12 months’ imprisonment.

Foreign National Offender Conditional Caution (FNOCC)

If administrative removal is not considered appropriate, in cases (including indictable only cases) where the likely sentence would be less than two years’ imprisonment, consideration should be given to offering the suspect a conditional caution with foreign offender conditions.

For more detailed information, refer to the section on FNOCCs below.

Administrative removal and FNOCC not appropriate

If neither administrative removal nor a FNOCC is considered appropriate, prosecutors should apply the Code, including consideration of the questions at paragraph 4.12. In most cases, it is likely that a prosecution will be in the public interest.

3. Approach in human trafficking and slavery cases

If it comes to the notice of the prosecutor that the suspect may have committed an immigration offence whilst in a coerced situation and may be a victim of human trafficking or slavery, the investigating officer should be asked to make further enquiries and refer the suspect through the National Referral Mechanism.

When making a decision on whether it is in public interest to prosecute such suspects, prosecutors should follow the approach in the legal guidance on Human Trafficking, Smuggling and Slavery.

Foreign National Offender Conditional Caution

The purpose of the Foreign National Offender Conditional Caution (FNOCC) is to bring about the offender’s departure from the UK and to ensure that return does not occur for a specified period of time. These conditions must be imposed in every case.

The offender may also be required to:

  • Report regularly to an immigration office, reporting centre, police station or other similar place, pending removal.
  • Obtain or assist authorities in obtaining a valid national travel document.
  • Comply with removal directions within a set time period (usually 16 weeks) and any lawful directions given to effect departure.
  • Not to return to the UK within a specified period of time, normally 5 years as set out in the Immigration Rules, although in exceptional circumstances a period of 10 years may be specified.

If the FNO does not comply with the conditions set, they can be prosecuted for the original offence.

A FNOCC may only be offered to a foreign offender having no leave to enter or remain in the UK, and in respect of whom there is power to enforce departure.
FNOCCs may be used in cases that would ordinarily result in the imposition of imprisonment following conviction, where the sentence likely to be imposed for the offence under consideration would be less than two years imprisonment. They should only be used where it will be practicable to remove the person within a reasonable period of time.

FNOCCs cannot be offered where the offender makes, or has, an outstanding asylum or human rights claim to remain in the UK, or where the offender admits to committing a document or identify fraud offence in order to make a claim for asylum, or where the offender may be a trafficked victim. This does not prevent a FNOCC being offered where the asylum or human rights claim has been withdrawn or refused and any appeal against refusal has been finally determined.

A FNOCC can still be issued following charge if, following a review, the prosecutor considers the case might be disposed of more appropriately in this way. If so, prosecutors should engage with the defence before the first court hearing, to determine whether they agree. Once the FNOCC is administered, the case would be discontinued.

In all cases, the Code of Practice for Adult Conditional Cautions 2013 and the Director’s Guidance on Adult Conditional Cautioning 2019 must be applied.
See also the section on the Public Interest above.

Sentencing

For facilitation offences, the leading case is R v Le and Stark [1999] 1 Cr App R (S) 422, which related to the original section 25 offence in force, which had a maximum penalty of 7 years’ imprisonment at the time of the decision, but remains good authority:

  • The most appropriate penalty for all but the most minor offences of this nature is custody: the offence very often requires a deterrent sentence
  • Aggravating features include: repeat offending; commission for financial gain; facilitation for strangers rather than family members; conspiracies where the offence is committed over a period of time; a high degree of planning, organisation and sophistication; the number of illegal entrants involved; and the level of involvement of the offender

In Attorney General’s References (Nos 49 and 50 of 2015) (R v Howard; R v Bakht) [2015] EWCA Crim 1402 the court listed the following non-exhaustive factors as relevant to a case of conspiracy to contravene section 25:

  • Whether the offence is isolated or repeated
  • The duration of offending
  • Whether the offender had previous similar convictions
  • Whether the offender's motivation was commercial or humanitarian
  • The number of individuals involved in the breach of immigration law
  • Whether they were strangers or family
  • The degree of organisation involved
  • Whether the offender recruited others
  • The offender's role
  • Whether the offender's conduct involved exploitation of or pressure put upon others

The above guidance applies equally to those facilitating others in boats as well as vehicles. However, offences of facilitation by boat are also aggravated by the high risk to life inherent in this method of entry, caused by the actions of those organising the crossings and piloting the vessels. Different levels of responsibility and personal mitigation for the crossings will generally go to the issue of sentence rather than the decision to prosecute.

Ancillary Orders

Deportation

Procedures in relation to deportation are dealt with under the legal guidance on Sentencing - Ancillary Orders. Prosecutors should be fully familiar with these procedures, including their role in identifying and drawing the court’s attention to defendants eligible for deportation.

Forfeiture

Section 25C of the Immigration Act 1971 provides a power for the forfeiture of vehicles, ships or aircraft used in the commission of the offences under sections 25 and 25A of the Immigration Act 1971.

For other offences, the power to forfeit items used in the commission of a crime under sections 152-155 of the Sentencing Act 2020 (which applies to all convictions on or after 1 December 2020) should be considered.

Disqualification

If an offender used their vehicle to facilitate immigration crimes, an application may be made for an order to disqualify them from holding or obtaining a driving licence under sections 162-170 of the Sentencing Act 2020.

n exception to the hearsay rule: R v Patel [1981] 3 All ER 94). The HO official should give evidence as to how the list was compiled and confirm its accuracy: DPP v Leigh [2010] EWHC 345 (Admin).

Annex 1: Tables of Immigration Offences

View the Tables of Immigration Offences.

Further reading

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