Immigration: Organised Facilitation – Vehicles and Boats
- General Approach
- Roles and Responsibilities of Investigators
- Approach to Charging
- International Enquiries
Organised Facilitation is the process by which Organised Crime Groups (OCGs) arrange for non-UK nationals to enter or remain in the UK, in breach of UK immigration laws.
Prosecutors must first be satisfied that there is sufficient evidence to meet the evidential stage of the Full Code Test (FCT), set out in the Code for Crown Prosecutors (the Code). This will include an assessment of any statutory defences available to the suspect. If the FCT is satisfied, the public interest stage must be considered. When assessing whether a prosecution is required in the public interest, prosecutors must follow the approach set out in the Code, including consideration of the questions at paragraph 4.14 and the approach set out in the CPS Immigration Legal Guidance.
The police are likely to provide the first response/initial crime scene management and investigation in cases involving vehicles including HGVs, vans, campervans and cars. Immigration Enforcement (IE) will be involved in determining the initial status of migrants.
In cases where it is not possible to pursue a criminal investigation, a civil penalty is an alternative outcome to prevent further incidents. This will involve the Clandestine Entrants Civil Penalty Team (CECPT) in Border Force (BF).
IE is likely to be the principal lead responsible for investigating facilitated crossings via small boats but working closely with other law enforcement and partner agencies. All first response for vessels at sea, including clandestine boat entry into UK waters and into the UK comes under the jurisdiction of BF. Assessment on whether there is a facilitation case to be adopted by IE will be taken based on first responder accounts and aerial footage, and once details of migrant’s identities are known (e.g. repeat offenders). For beach landings, it is likely that the police will be the first response at the scene until BF / IE arrive. The police may be the first agency at the scene who will assume initial incident control although these incidents require a multi-agency coordinated approach with BF assuming overall command of the incident once notified.
In cases where only the driver of the vehicle or boat is to be prosecuted, the appropriate offence will be one of the following:
- Section 25 (assisting unlawful immigration by facilitating a breach of immigration law);
- Section 25A (helping asylum-seeker to enter UK);
- Section 25B (assisting entry to UK breach of deportation order)
Example of drafted charge under section 25(1) of the Immigration Act 1971.
xxxx on the xxx day of xxx 20xx did an act, namely transported/concealed an xxxx (country of origin) national into the UK, which facilitated the commission of a breach of immigration law by an individual who was not a national of the UK, knowing or having reasonable cause for believing that the act facilitated the commission of a breach of immigration law, namely xxxx, by that individual, and that that individual was not a citizen of the UK.
Section 25 prohibits facilitation of a breach of immigration law; the breach need not constitute an offence. This was confirmed in the case of Javaherifard  EWCA Crim 3231, which said “47 … it would be absurd if unlawful presence did not constitute a breach of immigration law. S1(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. S3 which contains the provisions for general immigration control, prohibits non-British citizens to enter without leave.”
Prosecutors will need to identify the immigration law said to have been breached. When referring cases to the CPS, IE should name the specific law that is breached on the MG3, which must be an immigration law within the meaning of s.25(2) Immigration Act 1971.
Depending on the facts of the case, s.1(2) and/or s.3(1)(b) Immigration 1971 Act can be relied on separately or in combination to specify the breach. Taken together these laws ‘determine’ whether a person is entering or in the UK lawfully (see R v Kapoor  EWCA Crim 435).
Both s.1(2) and s.3(1)(b) of the Immigration Act 1971 comprise “immigration law” within the meaning of s.25, confirmed in R v Dhall (Harpreet Singh)  EWCA Crim 1610. Those provisions provide as follows:
- s.1(2): Those not having [right of abode] 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 this Act; […]
- s.3(1)(b): Except as otherwise provided by or under this Act, where a person is not a British citizen…
- (b) he 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 cases, the breach of underlying law for the purposes of section 25 can and should be particularised by reference to both ss.1 and 3.
Proving an intended breach of immigration law
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 regulating entry into and stay in the UK, by seeking to facilitate entry into 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 is more complex.
Section 11 of the Immigration Act 1971 sets out what amounts to entry into the UK in law. No entry is effected by migrants unless:
- they disembark (when travelling by boat);
- they subsequently leave any immigration officer-approved area at a port.
And a person who has not otherwise entered the UK shall be deemed not to do so:
- while they are detained under the powers conferred by Schedule 2 1971 Act or section 62, Nationality, Immigration and Asylum Act 2002: and
- if they are on immigration bail
There is therefore a clear difference between arrival and entry to the UK in law.
This means that in cases involving the use of a boat where the sole intention is to be intercepted by BF at sea and brought into port for asylum claims to be made, no breach of immigration law will take place. This is because those on board will be escorted and detained, granted immigration bail when considered appropriate and/or subsequently removed, with the likelihood of no entry in law being made.
The same applies where the intention is to sail the boat to a designated port of entry in order to claim asylum. These issues were emphasised in the case of Kakaei  EWCA Crim 503.
Where the evidence indicates an intention to head for shore and to land undetected, there should be no difficulty in proving an intended breach of immigration law. The same would apply where the boat seeks to evade capture or avoid assistance when seen by BF, as this would suggest an intention to enter the UK.
Where the evidence indicates a dual intention when putting to sea; namely to head for shore, but diverting to BF if encountered, the existence of a secondary intention to be rescued if encountered would not remove the fact that there is an intention to ‘enter’ the UK. In those circumstances, it can be argued that the section 25 offence is prima facie committed by anyone who facilitates the journey to the UK.
Other examples of cases involving organised facilitation using vehicles and boats which address some of these issues are Adams  Crim. L.R. 593 (boat intercepted before entry made) and R v Eyck  1 WLR 1389 (facilitated persons discovered concealed in a van on a ferry).
More generally, the act of facilitation against those controlling or piloting the boat is complete once assistance is given. Whether or not there is sufficient evidence to prosecute will depend on the facts of each individual case and the intention of those on the boat will be key to proving offences under section 25.
In summary, to prosecute for an offence of section 25 in relation to those controlling or piloting a boat, there must be sufficient evidence to address assertions that the sole intention when putting to sea was to seek rescue by UKBF and claim asylum, or to head for a designated port in the UK to claim asylum.
In cases where the passengers of the vehicle or boat are asylum seekers and the facilitation is for gain, the appropriate offence will be helping Asylum-Seeker to enter UK contrary to section 25A of the Immigration Act 1971.
Under s.25(A)(1) a person commits an offence if he:
- knowingly and for gain facilitates the arrival in or the entry into the United Kingdom of an individual, and
- knows or has reasonable cause to believe that the individual is an asylum-seeker.
Under s.25A(2) Immigration Act 1971, an "asylum-seeker" means a person who intends to claim that to remove him from or require him to leave the UK would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention (within the meaning given by s.167(1) Immigration and Asylum Act 1999).
Unlike section 25 there is no requirement to prove intention to breach an immigration law, as section 25A which requires only an intention to facilitate the arrival or attempted arrival of a migrant. However, it is necessary to prove “gain”.
Where the offence has been committed to assist asylum seekers and there are difficulties in obtaining evidence of direct (financial) gain to support an offence under section 25A, prosecutors should consider whether there might be sufficient evidence to infer gain in return for assistance in facilitating a breach of immigration law.
The position of a migrant who plays a part in other migrants’ illegal entry is less clear. ‘Gain’ should be read widely (see, as an example in the case of blackmail, Bevans (1988) 87 Cr App R 64, where forcing a doctor to give a morphine injection to alleviate pain was a ‘gain’).
A migrant who agrees in advance of the crossing to assist with piloting the boat, or to otherwise assist, in exchange for the passage (or a reduced charge for the passage) may well receive a ‘gain’, although it may be more challenging to prove this.
In more complex cases involving an Organised Crime Group (OCG), conspiracy charges under s.1 Criminal Law Act 1977 may be appropriate. Where the agreement relates to actions which are intended to take place outside the UK, which would amount to an offence in both that country and the UK, an offence under section 1A Criminal Law Act should be considered. This offence requires the consent of the Attorney General.
In Bina  EWCA Crim 1444 it was held that s.25(1) Immigration Act 1971 is applicable as much to those who assist asylum seekers as to other individuals. Section 25 does not require that individual non-nationals 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. The Court of Appeal in Bina held that it was plain that there was no such limitation 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 a European Union state. The court held that the statute is aimed at those who facilitate such illegal entry.
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 investigative advice (EIA). This will include advising on who should be treated as a suspect, victim or witness and the public interest in continuing to prosecute where administrative removal is appropriate. Early engagement is crucial where international enquiries and early financial investigation is required. These offences are lifestyle offences for the purposes of proceeds of crime; it is therefore important that financial investigation is carried out in parallel.
- Photos/BWV footage of the facilitated person(s) including clear images of any concealments.
- Phones from the suspects/facilitated persons.
- Tachograph evidence.
- SatNav/GPS tracking.
- Forensics (e.g. if the facilitated persons have food or water bottles are the suspect(s) fingerprints / DNA on any of these items?).
- Travel tickets, receipts, any notes, CMRs (road consignment note).
- Retrieve and document all cash found/ credit cards / bank cards found.
- Locking mechanisms on the vehicle - detailed look at whether locks are broken, seals have been broken and resealed, etc.
- Well-structured and challenging interview to cover 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 (helps if this is a concealment case), the number of stops during travel and where the suspect stopped. All of this is crucial to enable the Prosecutor to send requests for mutual legal assistance.
- 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 proceeds of crime.
- Where passengers are all asylum seekers, evidence of gain (financial or gain by inference) to support an offence of facilitating entry by asylum-seekers to the UK for gain under s.25A Immigration Act 1971.
In addition to the general guidance on facilitation, the following additional evidence should be obtained:
- Drone footage is invaluable – to prove the suspect did an act / does an act to facilitate the commission of a breach or attempted breach of immigration law by an individual. Usually this would prove that the suspect was driving, piloting or otherwise controlling the small boat.
- First responder accounts from Maritime and Coastguard Agency (MCGA), BF, or Ambulance crews identifying any “alpha” passengers on the vessel.
- Phone evidence – there have been several cases where the suspect has taken ‘selfie’ images on his phone showing that he is steering or loading the facilitated persons onto the boat. The meta data can be evidenced to prove that the boat was mid-channel at the time the phone was used.
- Phone downloads, in particular use of virtual phone networks (VPNs). Using a VPN may show a degree of sophistication which is contrary to the version being advanced by the suspect. Downloads may also assist in understanding what the intention was when putting to sea. A short expert statement explaining the significance of VPN should be obtained.
- Phone downloads are also helpful in establishing browser history / social media, for example where suspects have viewed sites to purchase vessels, or migrants have used forums to arrange crossings with others. However, the attribution of devices to migrants is often difficult, particularly in situations where safety of life at sea is paramount.
- Where phones are observed to have been thrown overboard, this should be evidenced with details as to the point at which this occurred.
- What time of day the boat was intercepted.
- Where exactly the boat was intercepted, how far offshore, in what direction it was heading, the weather conditions and tides.
- Evidence of any calls to emergency services during the trip, established from the call history from recovered phones.
- 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 go to the issue of sentencing).
- What the migrants on the boat said about their intentions/ who controlled the boat
- Recovery of any documents from the facilitated persons and the suspect(s) along with phones.
- Expert report.
- Admissions in interview, in particular regarding the intended destination.
- Whether there is a previous history of crossings or piloting boats.
- Whether any one on the boat made application for asylum and their current status<./li>
- 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.
In addition to the evidential requirements 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 party agencies 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. Elements of this material may be evidential.
There are potential challenges in relying on facilitated persons as witnesses; it is important then 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 will need to make representations to the Home Office setting out why the removal should be delayed until the witness can give evidence. 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.
See also International Enquiries.
The approach in charging cases referred from IE involving migrants travelling from France in ‘small boats’ defined as RHIBs (Rigid-Hulled Inflatable Boats) is to consider prosecution for anyone who has been involved in organising and planning these journeys, together with those responsible for controlling the vessels. Prosecutors should be live to the possibility that individuals initially thought to be would-be migrants may in fact be acting as organisers / facilitators and keep an open mind about roles until all relevant material is reviewed.
When assessing whether a prosecution is required in the public interest, prosecutors must follow the approach set out in the Code, including consideration of the questions at paragraph 4.14. These cases can involve consideration of the public interest where the suspects do not present as an integral part of the organised crime networks responsible for arranging the journeys, but where they nevertheless play a less significant role in controlling the vessel during the crossing. For example, this might include those who may not be acting for personal financial gain but help to purchase, inflate or steer the boat, particularly in circumstances where the lives of others are put at risk. Prosecutors should also consider the public interest section of the CPS Immigration Legal Guidance, in particular concerning the approach to cases involving refugees and consideration of Article 31 of the Refugee Convention. As always, every case must be taken on its own facts and decisions must be in line with the Code in the usual way.
Depending on whether there may be aggravating factors, such as repeat offending, or those seeking to enter the UK in breach of a deportation order, prosecutors should consider approaching the occupants of vehicles and vessels (the “passengers”) in accordance with the factors set out in the CPS Immigration Legal Guidance, which provides the guiding principles to be applied.
Approaching cases in this way, it is unlikely that passengers of vehicles or boats would be prosecuted. In these cases, passengers may have committed a summary only offence and IE should give consideration to administrative removal rather than prosecution. The focus for prosecutions should be on those with more significant roles, i.e. those that facilitate the entry.
The same approach should be taken to those who are simply passengers in boats as to those found in vehicles. Further, if the boat has been intercepted, then it is unlikely that an offence of illegal entry under s.24(1)(a) Immigration Act 1971 is made out.
An offence under s.24(1)(a) Immigration Act 1971 relates to the facilitated persons – those who have breached immigration law by entering the UK without leave. This is a summary only offence and on conviction defendants are liable to a Level 5 fine, 6 months’ imprisonment or both. These cases are often charged without CPS advice as they are summary only and need to be carefully reviewed once charged, particularly in relation to the public interest code test.
Where charges are being considered against passengers where there are aggravating factors, the offence of illegal entry under s.24(1)(a) Immigration Act 1971 is only made out if the boat has reached the UK and the facilitated persons disembark. (See reference to Section 11 of the Immigration Act 1971 above).
A recent example of a case which was charged involved a man who had tried several times to enter the UK illegally, had been deported each time yet had again tried to enter the UK. As he was a recidivist the Officer in the case charged the suspect. The CPS considered that it was in the public interest given the aggravating features. In that case the defendant entered a guilty plea and was sentenced to a fine of £500 and issued with a deportation order.
Facilitation offences are either way but will invariably be tried /sentenced in the Crown Court.
Under s.25(6) Immigration Act 1971, a person guilty of an offence under this section shall be liable:
- on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or
- on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.
This offence is a lifestyle offence under Sch. 2 of the Proceeds of Crime Act 2002.
The leading case is R v Le and Stark  1 Cr App R (S) 422, which related to the original s.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.
- For examples of how R v Le has been applied in more recent cases, see: R v Shahi (Rakhi)  EWCA Crim 2480; R v Chocat (Christiane)  EWCA Crim 1468; and Kvec, R v  EWCA Crim 594 (28 February 2008).
- In Att. General’s References (Nos 49 & 50 of 2015) (R v Bakht)  EWCA Crim 1402 the court listed the following non-exhaustive factors as relevant to a case of conspiracy to contravene s.25, referring to the case of Attorney-General's Reference (No 28 of 2014)  EWCA Crim 1723:
- 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. Mitigating factors and levels of responsibility for the crossings will be explored in court and will generally go to the issue of sentence rather than the decision to prosecute.
In R v Le and Stark  1 Cr App R (S) 422, one of the sentencing considerations was set out by Lord Bingham CJ “The offence is one which calls very often for deterrent sentences and as the statistics make plain, the problem of illegal entry is on the increase”
International enquiries should be considered in all cases at an early stage, regardless of whether the suspect is a UK national or not. Inevitably, there will be relevant material abroad that relates to how the migrants were facilitated in. This applies equally to facilitation through road vehicles and boats.
Many of these cases will be charged under the threshold test so it is important that the OIC submits the requests for mutual legal assistance (‘MLA’) to the Prosecutor at the earliest opportunity. In particular, the second condition under the threshold test, that further evidence can be obtained; the OIC should be aware that this cannot be speculative but needs certainty that the evidence exists and can be obtained within the relevant timescales. Note that under Title VIII, Part 3 of the EU-UK Trade and Cooperation Agreement, Member States have 45 days to decide an MLA request and then it can take a further 90 days to execute. Timescales are likely to be longer than this if the request is being submitted to a non-EU Member State.
Lines of enquiry may include investigation of overseas suspects who organised the facilitation; material demonstrating the overseas locations of the facilitated individuals (such as hotel records and cell sites); and phone records showing links between the facilitated individuals, any overseas organisers, and the UK suspects.
The CPS has experienced prosecutors (Liaison Prosecutors) deployed overseas whose function includes the facilitation of MLA and extradition between the host country and the UK.