R v Kazem Khodamoradi
[2022] EWCA Crim 37
R v Ashari Mohamed & Ors
2 March 2023
[2023] EWCA Crim 211
Court of Appeal
Three men were charged with helping illegal immigrants enter the UK by boat. The court decided that the new laws make it a crime to help someone arrive illegally, even if that person is seeking asylum. The court also said that it doesn't matter if the person helping knew the details about the migrants' backgrounds – just that they were helping them break the law.
Key Facts
- •Appeal against rulings by Cavanagh J in prosecutions of four men for allegedly steering boats carrying irregular migrants from France to the UK.
- •Three appellants: Ashari Mohamed, Khdeir Idris Mohamed, Mustafa Mohammed Aldaw.
- •Charges under sections 24(D1) and 25(1) of the Immigration Act 1971 (as amended by the Nationality and Borders Act 2022).
- •Key issue: whether amendments to the 1971 Act by the 2022 Act changed the law regarding prosecutions of migrants intercepted at sea and taken to approved port areas, and those facilitating such arrivals.
- •Appellants challenged rulings on the interpretation of 'arrival', 'immigration law', and the required mental element for facilitation offences.
- •Appellants also challenged whether sections 30(3) and 37 of the 2022 Act provide a defence, and if section 24(D1) applies to asylum seekers.
Legal Principles
Definition of 'entry' under the Immigration Act 1971: A person arriving by ship or aircraft does not enter the UK until disembarkation and leaving an approved area.
Immigration Act 1971, section 11(1)
Facilitating unlawful arrival: A person steering a RHIB does not facilitate entry without leave if intending to steer to an approved area or expecting interception and transport to such an area.
R v. Bani [2021] EWCA Crim 1958
Amendments by Nationality and Borders Act 2022: Added new offence of arriving in the UK without entry clearance (section 24(D1)) and amended the definition of 'immigration law' in section 25(2) to include 'arriving'.
Nationality and Borders Act 2022, section 40
Refugee Convention Article 31(1): Contracting States shall not impose penalties on refugees for illegal entry or presence if they present themselves to authorities and show good cause.
Refugee Convention, Article 31(1)
Immigration Act 1971, sections 1(2) and 3(1): General principle that a person without right of abode requires permission to live in the UK and is subject to entry regulations.
Immigration Act 1971, sections 1(2) and 3(1)
Immigration Act 1971, section 3A: Enables Immigration Rules to impose requirements for entry clearance before arrival.
Immigration Act 1971, section 3A
Outcomes
Appeals dismissed; judge's rulings upheld.
Court rejected appellants' arguments regarding the interpretation of 'arrival', 'immigration law', the required mental element for facilitation offences, and the applicability of sections 30(3) and 37 of the 2022 Act as defences. Section 24(D1) applies to asylum seekers.
Section 24(D1) applies to asylum seekers.
The statutory scheme does not exempt asylum seekers from entry clearance requirements; the Immigration Rules require entry clearance for visa nationals regardless of asylum intent.
Sections 30(3) and 37 of the 2022 Act do not provide a defence to charges under section 24(D1).
These sections are concerned with interpretation of the Refugee Convention, not the creation of criminal defences.
'Commission of a breach of immigration law' in section 25(1) includes offences under section 24(D1).
The amendment to section 25(2) to include 'arrive' was sufficient to encompass section 24(D1) offences. A criminal offence controls entitlement.
Facilitators do not need to know the migrant's conduct was 'egregious' or non-refugee status.
The mens rea requirements are explicitly stated in section 25(1)(b) and (c); no additional mental elements are required.