Home Office triggered unlawful prosecutions by hunting down asylum seekers who steered Channel boats

Exclusive: Government changed tactics and launched drones to film dinghies after asking prosecutors ‘what more can be done’

Lizzie Dearden
Home Affairs Editor
Wednesday 22 December 2021 18:23 GMT
Migrants are taken ashore by UK Border Force at Dover last month
Migrants are taken ashore by UK Border Force at Dover last month (Reuters)

The Home Office triggered a wave of unlawful prosecutions that the UN Refugee Agency said should never have happened, after deciding to target asylum seekers who steer Channel boats, it can be revealed.

An investigation by The Independent has found that the department asked the Crown Prosecution Service (CPS) “what more can be done” as the number of crossings rose in 2019, and then dramatically shifted its tactics.

The following month, the Home Office contracted a drone company to start filming asylum seekers in dinghies crossing from France.

Immigration Enforcement then presented footage of “pilots” to the CPS for assisting unlawful immigration charges, which had never been used in such circumstances before.

Around 20 asylum seekers have since been jailed for steering dinghies, but four convictions were quashed at the Court of Appeal on Tuesday and more are expected to be overturned next month.

Priti Patel hailed the imprisonment of what she called “criminals” and “people smugglers”, but judges found that the jailed men were innocent asylum seekers with no links to organised crime.

Laura Padoan, a spokesperson for the UN Refugee Agency (UNHCR), told The Independent: “A passenger who assists in steering a boat, either under duress or to ensure safe passage, and for no financial gain, is not a smuggler and should not be prosecuted as such.”

The Detention Action charity accused the home secretary of “pressuring our institutions to undermine the rule of law and democratic norms”.

Director Bella Sankey added: “The story of how these injustices were meted out is a sorry and cautionary tale to all those public servants caught in the toxic whirlpool of Home Office policy-making.”

Steve Valdez-Symonds, Amnesty International UK’s refugee and migrant rights director, called the government’s policy of labelling asylum seekers people smugglers a “gross injustice”.

“Prosecuting people seeking asylum who are arbitrarily singled out as supposed profiteers was always a dangerous distraction, making a nonsense of the government’s claim to be tackling people-smuggling gangs,” he said.

“There should be no further prosecutions of this kind. The government should stop whipping up suspicion and hostility against victims of crime and other abuses and instead focus on providing desperately needed safe routes to seek asylum.”

Channel tragedy: Why are so many migrants crossing in small boats?

The Court of Appeal found that a “heresy about the law” had originated among Home Office officials investigating the cases, and been passed on to prosecutors, defence lawyers and the courts.

When judges demanded an explanation, the CPS said: “The issues which have arisen in relation to the ‘pilots’ of RHIBs [rigid-hull inflatable boats] had not arisen in any facilitation case previously, until drone technology began to be deployed in around 2019.”

The Independent has obtained a record of discussions about prosecutions for Channel crossings between the Home Office and CPS from that year, under a Freedom of Information request.

A redacted email from 9 October 2019 said government officials had “invited [prosecutors] to discuss what is possible and what more can be done in terms of disrupting/prosecuting those responsible for smuggling illegal migrants across the Channel in inflatable boats”.

The email, sent by a CPS employee to a colleague and three Home Office officials, said the CPS was already “pursuing every opportunity possible” and had to apply the same legal tests to charges on a case-by-case basis.

The following month, the government awarded a contract of undisclosed value to drone company Tekever for maritime patrols over the English Channel.

The Home Office later hailed the role of “cutting-edge aerial surveillance” in prosecuting people for steering dinghies.

One of the men jailed using the footage gathered was Iranian asylum seeker Ghodratallah Zadeh, who had his conviction and two-year prison sentence overturned on Tuesday.

Ghodratallah Zadeh had his conviction quashed after being wrongly jailed for ‘assisting unlawful immigration’
Ghodratallah Zadeh had his conviction quashed after being wrongly jailed for ‘assisting unlawful immigration’ (Home Office)

The court heard he paid smugglers in France for the journey, shared steering the dinghy with other passengers, and that his “sole purpose was to get himself to the UK to claim asylum”.

The Court of Appeal concluded that Immigration Enforcement investigators had adopted a “heresy about the law” that saw them pursue dinghy passengers for crimes they did not commit.

“As the law presently stands, an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom in order to make a claim is not entering or attempting to enter the country unlawfully,” said the judgment.

“Even though an asylum seeker has no valid passport or identity document, or prior permission to enter the United Kingdom, this does not make his arrival at the port a breach of an immigration law.”

As well as prosecutions, the approach saw asylum seekers arriving on small boats handed legal notices wrongly claiming they could be deported because they had committed an immigration offence.

The “erroneous” position meant that Home Office officials interviewing arrivals did not ask questions required to establish a criminal offence, and disregarded evidence that proved the prosecuted men’s innocence.

The Court of Appeal said the strategy had been adopted “without any careful analysis of the law and appropriate guidance to those conducting interviews, taking charging decisions, and presenting cases to courts”.

New laws would circumvent one of the successful grounds of appeal, by meaning that asylum seekers do not technically have to enter the UK to commit an offence.

A government document said the new law “will allow prosecutions of individuals who are intercepted in UK territorial seas and brought into the UK”.

The Nationality and Borders Bill would also increase the maximum sentence for the offence of assisting unlawful immigration to life, as well as raising the penalty for illegal entry from six months’ imprisonment to four years.

The UNHCR called the plans “deeply concerning” and said criminalising the act of arriving in the UK to seek asylum will violate the 1951 Refugee Convention, which the government denies.

“The right to seek asylum is universal and is not dependent on the way in which someone arrives in the country,” Ms Padoan added.

The Refugee Action charity said it “shouldn’t need the Court of Appeal to tell ministers that it is legal for people to claim asylum”, and called for the bill to be scrapped.

A Home Office spokesperson said: “As people are dying, it’s more urgent than ever to look at what more can be done to disrupt those responsible for illegally smuggling migrants across the Channel.

“We continue to work with the CPS and others to crack down on and prosecute smugglers who risk lives for profit. These cruel people could face life sentences under our Nationality and Borders Bill, which was backed by a clear majority of MPs.”

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