A recent case gives guidance for the courts on how asylum seekers who arrive in the UK via small boats should be sentenced.
Prime Minister Rishi Sunak has made ‘stopping the boats’ one of his five key priorities for 2023, but has recently suggested it may not be possible before the next election. The Nationality and Borders Act 2022 was introduced with the primary intention of preventing those who arrive via “irregular” or “unsanctioned” routes from claiming asylum by disqualifying them from consideration as refugees. The starting sentence for such an offence is 12 months’ imprisonment.
However, it is important to note that there are now very few safe and legal routes for asylum seekers. This means that many asylum seekers have no route to the UK other than by small boat.
What is the background to this case? Keep reading to learn more.
Background – R v Ginar 
The individual in this case (R v Ginar 2023) is a Turkish national. Ginar travelled to the UK in 2023 hoping to claim asylum following the destruction caused by a major earthquake which destroyed his home. The political situation in the country was also difficult for him and his family.
He travelled with more than 50 other foreign nationals across the English Channel by a rigid inflatable boat. It was intercepted by UK Border Force in June 2023 and he was subsequently detained.
Following this, Mr Ginar pleaded guilty to contravening section 24 (D1) of the Immigration Act 1971. The amendments to this which Ginar was found in breach of were introduced in the Nationality and Borders Act 2022. Ginar was reportedly not aware that he was breaking the law and claimed he would not have travelled if he had known. He also claimed he was threatened with death by the people smugglers after seeing how overcrowded and dangerous the boat was.
Grounds for appeal
Mr Ginar was sentenced to 12 months’ imprisonment in August 2023. This was reduced to eight months following his guilty plea. He then applied for permission from the Court of Appeal to appeal his sentence. The basis for this appeal was on two grounds:
1. That irrelevant information was treated as an aggravating factor by the sentencing judge
2. That his sentence of 12 months reduced to eight was manifestly excessive
Regarding the first ground for appeal, the irrelevant information was the applicant’s immigration history. Mr Ginar had previously been through the UK asylum process in 2005 after being refused leave to enter. Despite his asylum application being refused, and an appeal dismissed, it appears that he stayed in the UK. After another application for leave to remain in 2013 that was refused, he left the UK in November 2015. The argument was made that it was not a criminal offence to enter the UK without valid entry clearance at the time of his previous immigration history.
The second ground of appeal relied on Mr Ginar’s first ground. Ginar argued that if the sentencing judge ignored his immigration history, there were no aggravating features in his case.
However, the court refused the appeal. They concluded that there was no arguable ground for challenging the decision or approach made in the sentencing of Mr Ginar. The court held that the aggravating and mitigations factors balanced each other out, leading to the sentence of 12 months.
They argued that the offence was aggravated by previous convictions and “a history of unsuccessful applications for leave to enter or remain or for asylum”. Even though the previous attempts did not amount to a criminal offence, the examples of previous failure made the attempt to arrive without valid entry clearance more egregious.
It was therefore held that the sentence of 12 months’ imprisonment reduced to eight months following a guilty plea was not ‘manifestly excessive’.
The decision made by the Court of Appeal could be said to be a surprising one. Despite this, it does provide clarity on how the courts will approach criminal sentences for those convicted for the offence of arriving in the UK without entry clearance. While the court referred to safer alternative routes being available, as pointed out previously these are not available for the majority of asylum seekers. Instead, this is largely limited to schemes from specific countries. This includes Ukraine and to a lesser extent Afghanistan. Many Afghans continue to arrive via small boat.
With reports in the media that convicted criminals may avoid jail from this week because prisons are full, it could be seen as contentious for the government to prioritise the sentencing of asylum seekers who arrive in the UK via small boats.
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