Illegal immigrants who arrive in the UK via small boats face a minimum of 12 months behind bars, according to new guidance from the Court of Appeal.
The starting sentence for arriving, or attempting to arrive, in the UK without entry clearance—a new law introduced under the new Nationality and Borders Act—was found to be appropriate by a panel of senior judges.
It followed an appeal against a Crown Court-imposed prison term given to a Turkish national convicted of the offence this year.
The 44-year-old was detained before being interviewed under caution, where he made no comment throughout.
On Aug. 18, 2023, he appeared at Canterbury Crown Court, where he pleaded guilty to entering the country illegally and was sentenced to 12 months imprisonment.
Giving credit to Mr. Ginar’s guilty plea, the judge reduced the jail term to eight months.
Asylum Attempts
The Court of Appeal heard how the Turkish national had previously travelled to Britain in 2005 when he was refused leave to enter, but applied for asylum.That application was refused, and an appeal against the refusal was dismissed.
In 2013, Mr. Ginar applied for leave to remain with that application also refused with no right of appeal, but he sought permission to apply for judicial review.
Again, this was refused and in November 2015, Mr. Ginar left the UK.
In May 2017, he made an unsuccessful application for entry clearance.
The court heard he had travelled to the UK this year with the hope of claiming asylum again, given the deteriorating political situation in Turkey and the destruction caused by the earthquake earlier this year.
Following his crown court sentencing, he applied for permission from the Court of Appeal’s criminal division to appeal his sentence on the ground that irrelevant information, namely his immigration history, had been treated as an aggravating factor by the sentencing judge.
His second ground of appeal was that his sentence of 12 months reduced to eight was “manifestly excessive.”
While the offence itself carries a maximum sentence of four years’ imprisonment, he argued that if the sentencing judge had ignored his immigration history, his case did not have significant aggravating features.
Aggravating
During the appeal, the judges found that the custody threshold will “generally be crossed” for people arriving in Britain by small boats, placing then at risk of prison for making the dangerous journey across the English Channel.Regarding immigration history as an aggravating factor, the court said that, “The offence will be aggravated by relevant previous convictions, by a high level of planning going beyond that which is inherent in the attempt to arrive in the United Kingdom from another country, and by a history of unsuccessful applications for leave to enter or remain or for asylum.”
The judges said that even if the previous attempts did not involve any criminal offence, “the history of previous failure makes it more serious that the offender has now resorted to an attempt to arrive without valid entry clearance”.
The judgement, released this month, added, “The weight to be given to that factor will, of course, depend on the circumstances of the case.”
The court considered the “powerful features of personal mitigation” small boats cases will have, such as “arguable grounds” for claiming asylum.
However, the court concluded Mr. Ginar’s “repeated efforts” to enter the UK “made it significantly more serious that [Mr. Ginar] again attempted to arrive in the UK on this occasion.”
People Smugglers
In dealing with the question of whether Mr. Ginar’s sentence was excessive, the court noted the lack of sentencing guidelines available for this relatively new offence and went on to explore the relevant factors of culpability and harm.The court observed that lengthy sentences would do no good in deterring people from crossing the English Channel.
However, they went on to consider a wide-ranging list of factors that go to culpability and harm.
The ruling said: “There is legitimate public concern about breaches or attempted breaches of border control, and this type of offence, which is prevalent, will usually result in significant profit to organised criminals engaged in people smuggling.
“A key feature of culpability inherent in the offence, save in very exceptional circumstances, is that the offender will know that he is trying to arrive in the UK in an unlawful manner: if it were otherwise, he would take the cheaper and safer alternative route which would be available to him.”
The judges said that the harm in this type of offence is not simply the undermining of border control but also “the risk of death or serious injury to the offender himself and to others involved in the attempted arrival, the risk and cost to those who intercept or rescue them, and the potential for disruption of legitimate travel in a busy shipping lane.”
It added, “The reference to cheaper and safer alternative routes being available is somewhat misguided, given these simply do not exist for the vast majority of people.”
The judges concluded, “The resultant sentence of 12 months’ imprisonment, reduced to eight months after giving credit for the guilty plea, cannot be said to be manifestly excessive.”
