The Home Office has claimed that migrants who steer dinghies across the English Channel “could face life behind bars”, but the real jail terms are likely to be two or three years, The Independent can reveal.
New laws that came into force this week raised the maximum penalty for facilitating illegal immigration from 14 years to life imprisonment.
The same act made it easier to prosecute asylum seekers for piloting boats by removing a requirement that the offense had to be done for gain and making entering British waters without permission a crime.
In a statement released when the laws came into effect on Tuesday, the Home Office said: “Anyone caught piloting a boat carrying migrants in the Channel could face life behind bars from today, as part of the biggest overhaul of the asylum system in decades. ”
The government said the new measures included “tougher penalties for those who pilot a small boat or smuggle migrants into the UK via other dangerous or illegal means, with a maximum sentence of life imprisonment”.
Priti Patel added: “These new measures will enable us to crack down on abuse of the system and the evil people smugglers, who will now be subject to a maximum sentence of life imprisonment as a result of this law coming into force.”
But prosecution guidelines drawn up by the Crown Prosecution Service (CPS) say that sentences of between two or three years imprisonment “will be appropriate for pilots of small boats with their ‘hand on the tiller’”, according to a judgment from the Court of Appeal.
A lawyer who has worked on several cases involving Channel boat crossings said that “nobody is going to be getting anywhere near life”, even under the new laws.
“The maximum sentence of life has been briefed in press releases to look like the government is being tough, in the knowledge that once these cases go before the court no one will get life,” said the solicitor, who did not want to be named .
I have explained that the statutory sentencing guidelines applied to all crimes mean that judges must consider aggravating and mitigating factors.
CPS guidelines seen by The Independent say that terms can be increased if migrants steer boats across the Channel repeatedly, for financial gain or are involved in the organization of crossings.
The risk to life inherent in using flimsy dinghies in the world’s busiest shipping lane is also considered an aggravating factor.
Priti Patel admits there are no safe and legal routes for asylum seekers crossing the Channel
But the guidelines also state that sentences must be lowered if offenders have no previous convictions, present themselves to authorities, perform a “limited role under direction”, are coerced or exploited, have a limited understanding of the crime committed and make no financial gain, as is the case with many asylum seekers who steer the dinghies they travel on to the UK.
The Joint Council for the Welfare of Immigrants (JCWI) said the laws were part of a “wholesale attack” on the right to asylum.
“We know from dozens of testimonies and several court cases that people are coerced into steering boats,” said advocacy director Zehrah Hasan.
“The home secretary is well aware of this fact but, instead of creating the safe routes that people need, she’s trying to criminalize and deport people who’ve sought sanctuary here.
“It’s just another instance of this government treating migrants and refugees sadistically, to destroy lives and court headlines.”
A spokesperson for the Sentencing Council said judges must rely on the general sentencing guidelines, because it would not be drawing up specific instructions for new immigration offenses until 2023.
Jailing an asylum seeker for steering a Channel boat in November 2020, a judge at Canterbury Crown Court said: “The reality for a pilot in these cases is that he is one of a boat-load of migrants who are effectively indistinguishable from one another, except for that fact that he happens to have agreed to steer.”
Judge Rupert Lowe added: “The people traffickers who exploit these people’s desperation cannot pilot the RHIBs [rigid-hull inflatable boats] themselves, not only because it is dangerous, but also because they would run a high risk of being caught at the other end. 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 the trafficked.”
The CPS guidelines for offenses changed by the Nationality and Borders Act make clear that charges will not be brought in every case and that recognized refugees have a statutory defense to some crimes, such as falsifying documents.
The government has attempted to bypass part of the Refugee Convention by putting a definition in the law that means the defense is not available if people previously stayed in another country where they could have claimed asylum.
CPS documents say prosecutors must consider the “humanitarian aims of the convention” when deciding whether to prosecute refugees, adding: “In relation to illegal entry offenses, it may be that those refugees, or presumptive refugees, who commit criminal offenses as a necessary part of their journey to the UK are not prosecuted.”
Government ministers have voiced hope that the announcement of the new laws, failed boat pushback policy and the Rwanda agreement would deter Channel crossings, but they have arisen to new record levels.
More than 3,000 migrants reached the UK in small boats in June, pushing the total so far in 2022 to 12,690, more than double the number seen in the first half of last year.
A Home Office spokesperson said: “The broken asylum system is costing UK taxpayers over £1.bn a year and simply cannot continue.
“The Nationality and Borders Act will enable us to crack down on abuse of the system and the evil people smugglers, who will now be subject to a maximum sentence of life imprisonment.
“Those in need of protection should claim asylum in the first safe country they reach and not risk their lives making treacherous journeys.”