In the absence of any offence-specific guideline or previous judgment by the Court of Appeal (Criminal Division) in respect of the offence of attempting to arrive in the United Kingdom without valid entry clearance contrary to sections 1 of the Criminal Attempts Act 1981 and 24(D1) of the Immigration Act 1971, sentencers will need to follow the overarching principles to be applied in the Sentencing Council’s general guideline, the imposition guideline when considering suspension of a prison sentence and, where appropriate, the guideline in relation to a reduction in sentence for a guilty plea (paras 7, 15).

The first step is to reach a provisional sentence by taking account of the statutory maximum sentence, the sentencing judgments of the Court of Appeal (Criminal Division), the definitive sentencing guidelines for any analogous offences and to assess the seriousness of the offence by considering the culpability of the offender and harm caused by the offending. The Crown Court should consider which of the five purposes of sentencing in section 57 of the Sentencing Code it is seeking to achieve by the sentence it is imposing. It should then adjust the provisional sentence upwards or downwards to reflect the balance of any aggravating or mitigating factors before making any appropriate reduction by way of credit for a guilty plea (para 16).

The increase in the statutory maximum sentence for the section 24(D1) offence (as for the offence of knowingly entering the United Kingdom without leave contrary to section 24(B1) of the 1971 Act) from six months to four years’ imprisonment indicates that Parliament regarded that previous level of sentence as insufficient for both offences. Whilst it is longer than for some other immigration and asylum offences it is significantly shorter than the ten-year maximum for the offence of possessing a false identify document with intent contrary to section 4 of the Identity Documents Act 2010 which facilitates life in the United Kingdom thereafter (paras 17–18).

There is no offence-specific guideline for any offence so closely analogous to the offence under section 24(D1) as to be helpful. The predominant purpose when sentencing cases of this nature is protection of the public. Deterrence can carry only limited weight as a distinct aim in sentencing those who have travelled as passengers from France to the United Kingdom in a rigid inflatable boat because they are unlikely to be deterred by the prospect of a custodial sentence if caught (paras 20–21).

Relevant to culpability and harm are the legitimate public concern about breaches or attempted breaches of border control and that this prevalent type of offence will usually result in significant profit to organised criminals engaged in people smuggling. Save in very exceptional circumstances, a key feature of the inherent culpability is that the offender will know by omitting to take the available cheaper, safer alternative route that he is trying to arrive in the United Kingdom unlawfully. The inherent harm is not simply the undermining of border controls but also the risk of death or serious injury to the offender and others involved in the attempted arrival, the risk and cost to those who intercept or rescue them and the potential for disruption of legitimate travel in a busy shipping lane (para 22).

Accordingly, the seriousness of this type of offence is such that the custody threshold will generally be crossed and an appropriate sentence, taking into account the inherent features before considering features of additional culpability or harm, aggravating and mitigating factors and credit for a guilty plea, will be around 12 months’ imprisonment. Culpability will be increased where an offender plays some part in the provision or operation of the means by which he seeks to arrive in the United Kingdom for example by piloting a vessel rather than being a mere passenger or involving others, particularly children, in the offence and by seeking to enter to engage in criminal activity such as modern slavery or trafficking. Culpability will be reduced if the defendant genuinely intends to apply for asylum on arguable grounds (paras 23–24).

Although consideration of aggravating and mitigating factors is case specific, upwards or downwards adjustment of the provisional sentence will be required in the commonly arising situations where the offence is aggravated by relevant previous convictions, there is a high level of planning beyond that which is inherent in the attempt to arrive in the United Kingdom from another country and there is a history of unsuccessful applications for leave to enter or remain or for asylum even if the previous attempts did not involve any criminal offence because the history of previous failure makes it more serious that the offender is resorting to an attempt to arrive without valid entry clearance. The weight to be given to that factor will depend on the circumstances of the case (para 25).

The offence will be mitigated by an absence of recent or relevant convictions, good character, young age or lack of maturity, mental disorder or learning disability and involvement in the offence due to coercion or pressure. Appropriate weight must be given, on a fact-specific basis, to the powerful features of personal mitigation which are often present in cases of this nature. The circumstances relied on as arguable grounds for claiming asylum such as the offender seeking to escape persecution and serious danger are also likely to mitigate the offence of arriving in the United Kingdom without a valid entry clearance. Some offenders may have been be misled as to what would await them in this country if they paid large sums of money to the criminals who offered to arrange their transport. Some may have suffered injury or come close to drowning when crossing in a dangerously overcrowded vessel. It is for the sentencer to evaluate the weight to give to such circumstances in a particular case (paras 26–27).