Landmark Decision on Facilitation of Unlawful Entry by Small Boats Across the English Channel

6 January 2022

Bani et al [2021] EWCA Crim 1958, CA

Sean Kivdeh and Dr Andreas O’Shea appeared for Al Anzi in the Court of Appeal. On the 21st December 2021, the court, sitting as a Special Court, and consisting of Edis L.J., Mrs Justice May and Sir Nicholas Blake, gave judgment quashing Mr Al Anzi’s conviction as unsafe.

The court found that over the years the courts and practitioners had misinterpreted the law and failed to appreciate the difference between arrival and entry. It held that where a person seeking asylum steers a hard hulled inflatable boat also harbouring other asylum seekers, he does not necessarily facilitate the entry or attempted entry without leave into the United Kingdom of those other asylum seekers. He would not be guilty of this offence unless it is proved by the prosecution that he knew or had reasonable cause to believe that one or more of the migrants had the intention as one option of their plan to disembark somewhere other than in a designated port or to be intercepted and taken to such a port. This is because entry is only effective once leaving such an area.

In addition, the decision confirms that a jury direction is required as to what amounts to entry in all small boat cases, unless a defence admission is made. It further provides guidance as to what form such a direction should take. The court confirms that there is no legal or evidential burden on the defence in relation to the defendant’s state of mind. Expert evidence on the behaviour of migrants may be admissible depending on the issues in a case.