Eksklusiv: Court of Appeal to rule on four test cases that will apply to at least a dozen jailed asylum seekers in total
De Home Office labelled the men “people smugglers” after they were prosecuted for assisting unlawful migration, and the government is now pushing to increase the punishment for the crime from 14 years to life imprisonment.
Following a landmark appeal won by an Iranian asylum seeker in April, Den uavhengige understands that 12 men are taking their cases to the Court of Appeal.
Judges will convene a “special court” next month, where legal arguments will be made over four test cases, and the resulting ruling will be applied to all linked appellants.
Three of the test cases involve Iranian asylum seekers, while the fourth man is Kuwaiti.
All were arrested after being observed steering dinghies over the English Channel and the Home Office publicised their convictions.
The hearing will start at the Court of Appeal on 14 December and is expected to last for at least two days.
The earliest case is that of Iranian Samyar Bani, who was prosecuted in June 2019 and jailed for six years.
Local media reported that a defence lawyer told the court the case was a “situation I have never heard of before” and added: “He is as much of a victim as others who have found their way to our shores.”
The offence of assisting unlawful migration was previously used against people smugglers such as lorry drivers who took substantial payment for illicitly transporting people to the UK.
Ghodratallah Zadeh, another Iranian asylum seeker, is fighting to overturn his conviction after being jailed for two years in 2020.
He admitted assisting unlawful immigration on the basis of legal advice received at the time, after being filmed steering a boat by a Border Force drone and saying smugglers charged him a reduced rate.
The third key appellant, Kuwaiti Mohamoud al-Anzi, was jailed for three years and nine months in February after being convicted of assisting unlawful immigration by steering a boat carrying 11 andre folk. He had denied the offence.
The fourth man, Iranian Fariboz Rakei, was sentenced to four-and-a-half years in March after being arrested for steering a dinghy on his second Channel crossing to the UK.
He told Canterbury Crown Court he had maritime experience from his time serving in the Iranian military and that he had been put under duress to steer the vessel by smugglers.
Responding to his sentence, immigration minister Chris Philp said: “People smugglers are endangering life. These crossings are not only illegal but also unnecessary, as France is a safe country with a well-functioning asylum system.”
A month later, a landmark Court of Appeal judgment on a similar case confirmed that a defence was available to small boat pilots for the first time.
Fouad Kakaei had his conviction for assisting unlawful immigration overturned, and was found not guilty at a retrial in May.
Appeal judges ruled that if it was his intention to be intercepted by British authorities and taken to a port where he could claim asylum, it may not “amount to a facilitation offence”.
Mr Kakaei said he had taken turns steering the dinghy with other migrants “because their lives were at risk”, and had himself paid smugglers in France for the journey.
The case sparked a review of ongoing prosecutions that saw charges against 11 migrants for steering small boats dropped in June.
Den påfølgende måneden, the Crown Prosecution Service (CPS) issued new guidance meaning that asylum seekers steering boats where the “sole intention is to be intercepted and brought into port for asylum claims to be made” will not be charged.
The guidance said that in those circumstances, asylum seekers have not entered the UK under the terms of the Immigration Act, and therefore cannot have committed the crime of facilitating illegal entry.
The government has included a clause in the Nationality and Borders Bill that could make such prosecutions easier, by meaning that people do not have to technically enter the country in order to commit the offence.
The proposed law would also increase the maximum sentence for the offence of assisting unlawful immigration to life, as well as raising the penalty for the separate offence of illegal entry from six months’ imprisonment to four years.