The Home Office has labelled small-boat pilots “people smugglers” and threatened to jail them for life, despite an official report finding organised crime group members are not on board.
It has been pushing to criminalise Channel crossings after Priti Patel’s vow to make the route “unviable” was followed by record numbers, with officials using drones to film dinghies and single out migrants who steering them.
Since last year, the offence of assisting unlawful migration – which was previously used against people smugglers such as lorry drivers who took substantial payment – has been controversially used to prosecute boat pilots.
The change has seen 19 migrants who steered boats jailed since June 2020, for terms between 16 months and four-and-a-half years.
New legal guidance released by the CPS on Tuesday says: “In cases involving the use of a boat where the sole intention is to be intercepted by Border Force at sea and brought into port for asylum claims to be made, no breach of immigration law will take place … the same applies where the intention is to sail the boat to a designated port of entry in order to claim asylum.”
The guidance says that in those circumstances, asylum seekers have not entered the UK under the terms of the Immigration Act.
For a boat pilot to be charged with assisting unlawful immigration, there will have to be evidence that they were trying to reach shore outside a designated port of entry.
The Home Office said that migrants could be prosecuted under a different law which has not yet been used in such cases – the offence of helping an asylum seeker to enter the UK – if they had steered a boat in return for payment or other “gain”.
The government has repeatedly vowed to crack down on small-boat crossings, but the guidance says that prosecutors must treat them in the same way as other forms of entry such as lorries or cars.
They must also take into account the fact that organised crime groups on the European mainland may not give migrants a choice about their method of travel.
Frank Ferguson, the CPS lead on immigration crime, said: “We are confident the approach we have agreed today strikes a proportionate balance between deterring criminal gangs from attempting dangerous crossings and acting in the interests of justice and compassion.”
The CPS said it created the new guidance for clarity and transparency, and took into account a successful appeal by an Iranian asylum seeker who was jailed for steering a dinghy.
Fouad Kakaei’s case sparked a review of ongoing CPS prosecutions that saw charges against 11 migrants for steering small boats dropped last month.
Aneurin Brewer, a barrister from Red Lion Chambers, who represented Mr Kakaei, said: “Far from this new policy being born out of compassion, this guidance merely states what the law has always been, which the CPS have been forced to concede having fought it at every turn.
“It is also at odds with the recently published Nationality and Borders Bill, which seeks to amend the law to make it easier to prosecute asylum seekers who pilot Channel crossings.”
Record numbers of people have made the perilous journey across the English Channel in small boats so far this year, with nearly 6,000 reaching the UK in the first six months of 2021.
The CPS guidance comes days after the government unveiled the new Nationality and Borders Bill, which would increase prison sentences for immigration offences and allow potentially deadly “pushback” operations.
The bill includes clauses to allow the UK to be able to send asylum seekers to a “safe third country” and to submit claims at a “designated place” determined by the home secretary.
The proposed changes also have the potential to criminalise people who rescue asylum seekers from drowning and help them to shore, because the offence will no longer have to be “for gain”.
The new Nationality and Borders Bill would increase the maximum sentence for the offence of assisting unlawful immigration to life, as well as increasing the penalty for the separate offence of illegal entry from six months’ imprisonment to four years.
The Joint Council for the Welfare of Immigrants said the guidance “does not begin to address the injustice facing the many migrants who have served prison sentences for alleged crimes”.
The organisation’s legal policy director Chai Patel added: “Under this announcement, they would not now be prosecuted by the CPS. The director of public prosecutions must urgently review all prosecutions of asylum seekers who have tried to reach safety in the UK by boat.”
Bella Sankey, the director of Detention Action, said: “Desperate people trying to save their lives, and the lives of others, should never have been prosecuted in the first place and this change in guidance is wholly welcome.
“Parliamentarians should take note – the Nationality and Borders Bill would row back on this progress, criminalising refugees, their family members and supporters and it has no place in modern Britain“.
Alistair Carmichael, the Liberal Democrats’ home affairs spokesperson, said seeking asylum “is not a crime” and urged the government to drop the bill.
“This new guidance from the CPS is welcome, but it shouldn’t have been necessary,” he added.
“Prosecuting asylum seekers not only breaks our commitment to protect refugees, it also does nothing to tackle the smuggling and trafficking gangs who profit from people’s desperation.
“Priti Patel must stop her cruel and counterproductive attempts to criminalise vulnerable people who come to the UK to seek asylum.”
A report by the Independent Chief Inspector of Borders and Immigration previously found that smuggling activity was mostly taking place in France and there were “no organised crime group members onboard the boats”.
In October, a judge found that those who piloted boats did not organise Channel crossings, may be coerced and threatened, and are ultimately “one of the trafficked”.
Judge Rupert Lowe said: “The pilot-migrant in the type of case under consideration here is not in any realistic sense acting as part of a trafficking gang … he is one of a boatload of migrants who are effectively indistinguishable from one another, except for that fact that he happens to have agreed to steer.”
Charities say asylum seekers have no choice but to attempt dangerous boat journeys because of a lack of legal alternatives, but the government has increased its scope to declare asylum claims from people who have passed through safe third countries such as France inadmissible.
But no returns agreements have yet been secured with EU countries to replace the Dublin Regulation, which allowed the transfer of asylum seekers back to countries they had previously passed through until the end of the Brexit transition period.
The British government’s flagship scheme for resettling refugees from camps outside Europe was paused between March and December 2020, and the end of the Brexit transition period on 1 January has made family reunification harder.
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