Patel warned over legality of ‘morally repugnant’ prosecutions of asylum seekers crossing Channel

Exclusive: Letter to home secretary calls for prosecutions to be suspended

The home secretary, Priti Patel, visiting Dover on 10 August (Home Office)

Priti Patel has been warned that “morally repugnant” prosecutions of asylum seekers who steer boats across the Channel may be unlawful.

Eight migrants have been jailed so far this year for piloting dinghies, after the Home Office started using drones to identify them and then arrest them on arrival in the UK.

The home secretary has repeatedly branded the men “people smugglers”, but a judge ruled that they were “not acting as part of a trafficking gang”.

Stuart McDonald, the Scottish National Party’s spokesperson on immigration, told The Independent: “This new practice appears of dubious legality, and is morally repugnant.  Where on earth is the public interest in prosecuting the victims of organised crime gangs? This is clearly all about the home secretary’s horrendous political posturing rather than any sensible analysis of law, policy, or fairness.”

Migrants identified as dinghy pilots by a Home Office unit are being referred to the Crown Prosecution Service (CPS) to be charged with “assisting unlawful immigration”.

The offence, which was previously used against people smugglers working for profit, has a maximum penalty of 14 years’ imprisonment.

The Independent previously revealed that the CPS issued a note to lawyers in October after some questioned if the charges were in the public interest. A document said the offence of assisting unlawful immigration could be applied to asylum seekers who steer boats because they have “facilitated” a journey.

Letters sent to the home secretary and director of public prosecutions by a legal group said there were “considerable doubts as to the legality of this new policy” and called for charges to be suspended.

The Joint Council for the Welfare of Immigrants (JCWI) questioned how such charges passed the public interest test required for all prosecutions, in light of findings that migrants who steer boats are not part of criminal gangs and may be coerced and threatened.

The JCWI’s legal policy director, Chai Patel, said the policy may violate the UN’s Refugee Convention, which states that nations must “not impose penalties, on account of their illegal entry or presence, on refugees”.

He wrote that the Home Office’s repeated descriptions of asylum seekers jailed for steering boats as “people smugglers” appeared to clash with the UN Protocol Against the Smuggling of Migrants.

It defines human smuggling as requiring “a financial or other material benefit”, but some of the jailed men paid gangs in France thousands of pounds to cross the Channel.

In the letter to Max Hill QC, the director of public prosecutions, Mr Patel called the policy “irrational”.

“It does not have a deterrent effect on boat crossings,” he added. “It is also contrary to law and policy designed to protect victims of trafficking, modern slavery and human trafficking because it targets victims for prosecution, and in doing so, criminalises them before their claims for protection can be heard, and impedes their ability to make such claims.”

The JCWI is advising a man who was jailed for two years after being caught steering a dinghy in the Channel.

It said he had received a deportation letter from the Home Office, despite an ongoing asylum claim.

Mr Patel accused the government of “undermining the purpose of the asylum system” and international commitments by frustrating applications for protection.

“People do not make these journeys because they are easy. They make them because they feel they have no alternative,” he wrote.

“We are concerned that rather than considering the legitimate public interest in prosecution, decisions to prosecute have been tainted by political and public relations interests and other irrelevant considerations.”

The JCWI asked the CPS and Home Office for details of the policy and practice on boat prosecutions, telling the home secretary: “We have considerable doubts as to the legality of this new policy. We request that you suspend all such referrals.”

When questioned on the issue before parliament’s Home Affairs Select Committee on Wednesday, the minister for immigration compliance said the government would “not apologise” for jailing people who steer dinghies across the Channel.

“If somebody is facilitating these crossings, they are not a victim; they are a perpetrator,” Chris Philp said.

“They are enabling these crossings to happen and they are putting people in physical danger.”

In October, Judge Rupert Lowe found that migrants who pilot boats do not organise Channel crossings, may be coerced and threatened, and are ultimately “one of the trafficked”.

“The reality for a pilot in these cases is that he is one of a boat-load of migrants who are effectively indistinguishable from one another, except for that fact that he happens to have agreed to steer,” he said while jailing 30-year-old Iraqi Assad Abdulgany.

An image used as evidence to convict Assad Abdulgany, 30, of assisting unlawful immigration (Border Force)

The Home Office insists that courts have upheld its approach in several cases that ended with significant prison sentences.

A CPS spokesperson said it would respond to the JCWI's letter in due course, adding: “Every case referred to us is independently considered on its own merits and with reference to our legal tests, including whether a prosecution is in the public interest.

“The standard approach to immigration cases is to consider prosecution for those who have played a significant role in facilitating illegal entry to the UK, which includes those who pilot small vessels."

The Home Office was allegedly operating an unlawful asylum-interview policy during the period when migrants jailed for steering dinghies arrived in the UK.

Mr Justice Fordham ordered that officials must ask details of migrants’ journeys to the UK ahead of a full hearing later this month.

It comes amid continued battles over deportation flights, in which the Home Office has been condemned for attacking “activist lawyers” for stopping removals with legal applications.

Thirteen prisoners were deported to Jamaica in the latest flight on Wednesday, but 23 other individuals were removed from the aircraft's passenger list and their cases are now under review.