Held, appeals dismissed. The central issue in the preparatory hearing was whether the amendments made by section 40 of the Nationality and Borders Act 2022 to sections 24 and 25 of the 1971 Act had been effective to change the law, to permit the prosecution of migrants who were intercepted or rescued at sea and were then brought to the approved area of a port, and those who facilitated such an arrival or attempted arrival.

(1) On the issue whether section 24(D1) applied to a person seeking asylum in the UK, it was necessary to consider the relevant parts of the statutory scheme as a whole. The general principle was that a person without a right of abode required permission to live in the UK and was subject to the regulation and control of entry into the UK imposed by the 1971 Act. The legislation did not provide an exemption from those controls because a person intended to claim asylum on arrival. Section 3A of the 1971 Act enabled the Immigration Rules to impose requirements for entry clearance to be obtained before arrival in the UK and asylum-seekers were not excluded from the scope of those powers. The definition of “asylum-seeker” in immigration legislation recognised that such a person might otherwise be removed from or required to leave the UK. Although there was no requirement for entry clearance to be obtained by an asylum seeker in that capacity, the statutory scheme did not suggest that a person who intended to claim asylum was exempt from requirements to obtain leave to enter, or entry clearance, which otherwise applied. The clear combined effect of rule 24 of the Immigration Rules read with rule 6.2 was that visa nationals, such as a citizen of Sudan, required entry clearance before arrival in the UK for any purpose, and that was so irrespective of whether they had an intention to claim asylum on arrival. It followed that section 24(D1) applied to a person who required entry clearance under the Immigration Rules and who knowingly arrived in the UK without such clearance, even if he or she intended to claim asylum on arrival, and that was also the position in relation to an attempt to commit such an offence. The relevant provisions of HC 395 did not offend section 2 of the Asylum and Immigration Appeals Act 1993, but simply laid down a general requirement to obtain entry clearance before arriving in the UK, or leave to enter upon arrival here, but not in the capacity of seeking asylum; those provisions did not themselves create “penalties” for “illegal entry or presence” (see article 31(1) of the Refugee Convention); those penalties were to be found in primary legislation, sections 24(D1) and (F1) of the 1971 Act, to which section 2 of the 1993 Act did not apply.

(2) On the issue whether sections 30(3) and 37 of the 2022 Act provided a defence to a person charged with an offence contrary to section 24(D1) of the 1971 Act, the judge held that a conclusion to that effect would be contrary to the clear language of the statute. Section 31 of the Immigration and Asylum Act 1999 provided a defence to the offences listed in section 30(3). Although Parliament took the opportunity in section 37(5) of the 2022 Act to amend section 31, none of the provisions in sections 30 to 37 of the 2022 Act were expressed as a defence to a criminal charge. Instead, as the heading of those provisions suggested, and as was clear from their content, they were concerned only with the interpretation of article 1(A)(1), article 1(F), article 31(1) and article 33(2) of the Refugee Convention in the circumstances stated. It was also to be noted that section 37 of the 2022 Act did not address all of article 31(1). It interpreted certain parts of that provision concerned with whether a person had come directly from a territory or presented themselves without delay to the authorities and circumstances in which a penalty was treated as not having been imposed on a refugee on account of their illegal entry into or presence in the UK. Section 37 lacked a key provision of article 31(1), namely the prohibition on penalising a refugee on account of his illegal entry or presence in the UK. It also lacked the requirement that the refugee “show good cause for their illegal entry or presence.” There was no rule or principle of construction which could enable the court to construe sections 30 to 37 as creating a defence to a criminal charge.

(3) On the issue whether “the commission of a breach of immigration law”, within section 25(1) of the 1971 Act as amended, included the offence of arrival without leave contrary to section 24(D1) of the 1971 Act, the defendants’ assertion that only immigration law falling within sections 1 and 3 of the 1971 Act qualified for the purposes of section 25(2) was unfounded. Nothing in the sections themselves supported that proposition and they needed, in any event, to be read with other provisions such as section 3A. Since 2000 section 3A (together with the definition of “entry clearance” in section 33(1)) had enabled Immigration Rules to be made requiring entry clearance to be obtained before a person arrived in the UK. The regime created by section 3A of the 1971 Act fell within section 25(2) because it determined whether a person lawfully or unlawfully arrived in and then entered the UK. Consistent with that analysis, Parliament framed the new offence in section 24(D1) as being committed where a person who required entry clearance under the Immigration Rules arrived in the country without a valid entry clearance. It also followed that the only amendment which needed to be made to section 25(2), so that the facilitation offence in section 25(1) could apply to a breach of the regime created by section 3A and the new offence in section 24(D1), was the insertion of the words “or arrive in” in sub-paragraph (a). Section 24 (D1) of the 1971 Act operated in conjunction with section 3A (and indeed section 3) just as section 24(B1) operated in conjunction with sections 1(2) and 3, but, even taking section 24(D1) in isolation, it could not be accepted that a criminal offence of that nature did not control “entitlement” to arrive in the UK; a person was not entitled to do something which was illegal by virtue of being a criminal offence; the imposition of criminal liability for the act of arriving (or attempting to arrive) in the UK without the necessary entry clearance controlled entitlement to arrive in the country and, without more, was part of “immigration law”.

(4) On the issue whether the facilitator had to be aware or have reasonable cause to believe that the conduct of the passenger was criminal, the first and second defendants submitted that it was necessary for the prosecution to prove that “the defendant knew or had reasonable cause to believe that the migrant whose arrival was facilitated was an egregious case or was not a genuine or presumptive refugee” to prove an offence under section 25(2) of the 1971 Act of facilitating the commissioning of an offence under section 24(D1). In the requirements for mens rea which the prosecution had to prove, as set out in section 25(1)(b) and (c) of the 1971 Act, there was is nothing in the language of the legislation to import into section 25(1) the additional mental elements for which the defendants contended. The fact that the Crown Prosecution Service Guidance on the public interest test which was applied before launching a prosecution resulted in some cases not being prosecuted had no bearing upon the statutory construction of section 25. Further the conduct facilitated need not be criminal at all, but need only be a breach of immigration law.

(5) In the result, none of the grounds of appeal had any merit and the court would uphold the judge’s rulings on all the issues raised (paras 9, 49–62, 64–68, 75–79, 81–84, 85).