Diaz (NICA): Abuse of the Common Travel Area is an Aggravating Factor and England & Wales Section 25 Sentencing Principles Apply in Northern Ireland

Case: The King v Eric Diaz [2025] NICA 52 (Court of Appeal in Northern Ireland, 12 September 2025)

Court: Keegan LCJ, Kinney J, McLaughlin J (judgment of McLaughlin J)

Introduction

This commentary analyses the Court of Appeal in Northern Ireland’s decision in The King v Eric Diaz, a sentencing appeal concerning offences of facilitating breaches of UK immigration law under section 25(1) of the Immigration Act 1971. The case arises from an organised scheme in late 2022 whereby Bolivian nationals, lacking lawful permission, were assisted to move from Dublin into Northern Ireland and onwards to London via Belfast International Airport. The appellant, a Bolivian-born Spanish citizen residing lawfully in London, pleaded guilty to two counts of facilitation: booking and accompanying migrants on 29 September 2022 (Count 4, jointly with Michael Arias) and booking and advising a different individual on 22 November 2022 (Count 7, alone).

The Antrim Crown Court imposed a determinate custodial sentence (DCS) of three years (18 months in custody and 18 months on licence), after taking a four-and-a-half year starting point and applying a one‑third credit for guilty plea. Two co-defendants (the Arias brothers) were sentenced similarly but did not pursue renewed appeals. The Diaz appeal challenged the starting point, the weight accorded to aggravating factors, the assessment of culpability and harm, and alleged disparity with co-defendants.

In a judgment of wider importance, the Court of Appeal used the absence of prior Northern Ireland authority to set out general sentencing principles for section 25(1) offending. The Court explicitly aligned Northern Irish practice with England & Wales case law, affirmed the continued utility of the 3–8 year (after-trial) range for many cases despite the increase of the statutory maximum to life imprisonment, and, of particular local significance, declared abuse of the Common Travel Area (CTA) to be an aggravating feature in Northern Ireland cases.

Key points at a glance

Uniform approach across the UK: Sentencing for section 25 offences in Northern Ireland should mirror England & Wales authorities (paras [29]–[33]).
Aggravating features: The Court adopts and endorses the Le & Stark suite of aggravating factors and developments in later cases (paras [17], [21], [30]).
Common Travel Area abuse aggravates: Misuse of the CTA is expressly recognised as an aggravating feature in Northern Ireland (para [32]).
Typical range remains: A 3–8 year after-trial range remains appropriate in many cases, with immediate custody ordinarily required except in the most minor cases (paras [17], [18], [33]).
Statutory maximum to life: The increase to life imprisonment signals seriousness but does not arithmetically uplift all sentences (paras [21], [26], [33]).
Appeal outcome: Leave to appeal sentence refused; a 4.5-year starting point, reduced to three years for plea, was not manifestly excessive (paras [45]–[48], [56]).

Summary of the Judgment

The Court of Appeal refused leave to appeal and dismissed the application. It held that the trial judge:

Correctly identified and weighed aggravating features, including commercial motivation, repeated conduct, involvement with strangers, and abuse of the CTA (paras [36], [45], [48]).
Adopted a permissible starting point of four and a half years, within the established range, particularly given there were two separate counts several weeks apart (paras [45]–[46]).
Properly assessed the appellant’s culpability as at least moderate and the harm as moderate; “absence of more serious aggravation” was not personal mitigation (paras [38]–[39], [49]).
Did not err on disparity; roles were broadly similar within an organised enterprise, and the appellant continued offending after one co-defendant’s arrest (paras [52]–[55]).

Importantly, the Court articulated five general principles for Northern Ireland sentencing in section 25 cases (paras [28]–[33]):

Because immigration is an excepted matter, a consistent UK-wide approach to sentencing is appropriate (para [29]).
Courts in Northern Ireland should follow England & Wales authorities and the Le & Stark aggravating factors (para [30]).
Serious aggravation includes mistreatment, degradation, exploitation, or enforced servitude; recurring features include repeated conduct, commercial motive, planning, and involvement of multiple strangers (para [31]).
Abuse of the CTA is an aggravating feature, particularly given the role of Operation Gull (para [32]).
The spectrum of section 25 offending is diverse; immediate custody is ordinarily appropriate, with a 3–8 year range apt for many cases and the maximum reserved for the most serious (para [33]).

Analysis

Precedents Cited and Their Influence

R v Le & Stark [1999] 1 Cr App R 422 (para [17]): The seminal England & Wales authority establishing that immediate custody is appropriate in all but the most minor section 25 cases and identifying key aggravating factors: repeated offending, financial gain, strangers (not family), planning/organisation, prominent role, number of entrants, and lack of plea credit. Diaz adopts this framework for Northern Ireland.
AG’s Reference (Nos 37, 38 & 65 of 2010) [2010] EWCA Crim 2880 (paras [18]–[19]): Endorsed an after-trial range of 3–8 years for section 25 offences (notwithstanding the then‑14 year maximum). Diaz treats this range as persisting utility for many cases in NI.
R v Oliveira [2012] EWCA Crim 2279 (para [21]): Reaffirmed Le & Stark and added “recruitment of others” as an aggravating factor. Crucially, it explains how Parliamentary increases in maxima signal seriousness but do not mechanically uplift all sentences—an approach echoed in Diaz when addressing the 2022 move to life maximum.
R v Rotsias [2013] EWCA Crim 2470 (para [22]): Upheld 30 months for a single incident (starting point 45 months), with minimal planning and indirect gain. Diaz cites Rotsias to show that a 4.5-year starting point here, involving more than one count and more aggravation, was within range.
AG’s Reference No 28 of 2014 [2014] EWCA Crim 1723 (para [23]): Summarised a factor set including frequency, duration, previous convictions, commercial vs humanitarian motive, number involved, family vs strangers, organisation, recruitment, role, and exploitation/pressure. Diaz integrates these factors into NI practice.
AG’s Reference 49 of 2015 [2015] EWCA Crim 1402 (para [24]): Emphasised that the gravamen is the cynical, callous disregard of immigration law rather than the precise profit margin; Diaz adopts this perspective on culpability and harm.
R v Roman [2017] 1 Cr App R (S) 43 (para [25]): Indicated 42 months after trial for one count in a cross-Channel false identity context. Diaz uses Roman to demonstrate calibration across case types and supports its own starting point given multiple counts.
R v Ahmed [2024] 1 WLR 1271 (para [26]): Small-boat pilot cases with low culpability may attract a three-year starting point. Diaz highlights Ahmed to confirm that increased maxima should chiefly affect organisers, not low-culpability participants, further supporting nuanced calibration in Diaz.
R v Estabrook [2023] EWCA Crim 405 (para [55]): Reduced sentence to 27 months due to substantial personal mitigation (pregnancy; caring responsibilities) despite a four-year starting point for a single incident. Diaz distinguishes Estabrook and treats it as consistent with its approach to individualisation and mitigation.

Legal Reasoning

The Court’s reasoning unfolds in two connected tracks: first, establishing a Northern Ireland framework harmonised with England & Wales authorities; second, applying that framework to Diaz’s facts.

1) Establishing the Northern Ireland framework

Uniformity: Because immigration is an “excepted matter” (Northern Ireland Act 1998, Sch 2, para 8), the Court emphasises the desirability of a consistent UK-wide sentencing approach for section 25 offences (para [29]). This is a clear statement of principle for Northern Ireland.
Adoption of E&W authorities: The Court endorses the Le & Stark aggravating factors and the later refinements (Oliveira’s recruitment, AG’s References’ factor lists) as guiding sentencing in Northern Ireland (paras [30]–[31]).
CTA as an aggravating feature: Of particular regional significance, misuse of the Common Travel Area is expressly held to aggravate offending. The judgment anchors this in the practical reality of “Operation Gull” and the strategic importance of the CTA in migration control (para [32]).
Maxima and ranges: Even with the Nationality and Borders Act 2022 raising the maximum to life, the Court affirms that a 3–8 year after-trial range remains appropriate in many cases (paras [21], [33]). The increase in the maximum is a Parliamentary signal of seriousness but does not compel mechanical uplift across the board.
Immediate custody: The Court reaffirms that immediate custody is ordinarily called for in all but the most minor cases (paras [17], [33]).

2) Application to Diaz

Aggravation and starting point: The enterprise involved organisation among three actors, commercial motivation, repeated conduct over months, and assistance to multiple strangers. The Court accepts that the trial judge could legitimately treat CTA abuse as aggravating. A 4.5-year starting point lay within the accepted range (paras [36], [45]).
Comparative calibration: Given that Roman (single incident) and Rotsias (single incident, limited sophistication) attracted starting points or post-trial figures in the 42–45 month region, Diaz’s 54‑month starting point for multiple counts and additional aggravation was not manifestly excessive (paras [46]).
Plea and discount: The trial judge granted a full one‑third credit despite strong evidence. The Court notes that this was “potentially generous,” underscoring that robust evidence can, in some cases, justify smaller credits if the plea is not particularly early or inevitable (para [47]).
Culpability and harm: Moderate culpability and moderate harm were upheld. The Court rejects attempts to refract mitigation from the absence of more egregious harm (e.g., no dangerous crossings or coercive transport) (paras [38]–[39], [49]).
Disparity: The Court accepts the need to individualise but concludes the three were involved to a broadly similar extent. Crucially, Diaz’s continued offending after a co-defendant’s arrest undermines claims of lesser culpability (paras [52]–[54]). Estabrook does not assist Diaz because it turned on substantial personal mitigation absent here (para [55]).
Risk of re-offending: While the PSR assessed low risk of a further serious offence, the judge’s view of at least a moderate risk of re-offending did not materially affect sentence, and he was not bound to follow the PSR precisely (para [50]).

Impact and Significance

For Northern Ireland sentencing practice

Authoritative alignment: Diaz fills a prior lacuna by formally aligning Northern Ireland with England & Wales case law for section 25 sentencing. Judges and practitioners can now rely on the established E&W authorities as applicable in NI.
CTA aggravation: Prosecutors can point to CTA abuse as aggravating; defence counsel must be prepared to address this feature where cross-border movements from the Republic of Ireland are involved. Operations like “Operation Gull” now sit squarely within sentencing analysis.
Maintaining the 3–8 year range: Despite the life maximum, many cases will continue to be sentenced within this broad band post‑trial. Only the most serious, organised, exploitative, and/or repeated offending will approach the upper echelons.
Immediate custody the default: Non-custodial sentences will be exceptional and must usually be limited to the most minor instances with compelling mitigation.
Mitigation discipline: The Court’s approach distinguishes true mitigation from the mere absence of aggravation. Safe methods of travel, lower profit, or non-use of coercion are not typically mitigating; they simply avoid additional uplift.
Parity: The emphasis on roles and the common enterprise cautions against technical disparity arguments absent clear evidence of materially different culpability or strong personal mitigation.

For future case categories

Small boat cases: Ahmed indicates a typical three-year starting point for low-culpability pilots acting for self-entry, with significant uplifts for organisers. Diaz adopts that strategy of calibration; organisers in CTA contexts can expect higher starting points than mere pilots.
Commercial schemes: Cases involving recruitment, complex organisation, or exploitation (e.g., sham marriages, labour exploitation) will attract higher starting points, consistent with Oliveira and AG’s References (2014, 2015).
Post-sentence deportation: Diaz notes the likelihood of deportation but does not treat it as a sentencing determinant. Absent express guidance, the collateral consequence of deportation does not reduce culpability-driven custodial terms.

Complex Concepts Simplified

Section 25(1) Immigration Act 1971: Criminalises facilitating a non-national’s breach of immigration law (e.g., unlawful entry or remaining). The facilitator need not cross borders themselves; arranging travel, instructing, or escorting can suffice.
Determinate custodial sentence (DCS): A fixed-term sentence split between custody and supervised licence. Diaz received three years (18 months custody, 18 months licence).
Starting point: The sentence a judge fixes for the offence and its aggravation before discounts for guilty plea and adjustments for personal mitigation.
Guilty plea credit: Usually up to one-third if entered at the earliest reasonable opportunity; may be lower where the plea is late or inevitable given overwhelming evidence.
Manifestly excessive: The appellate threshold for revising sentence; an appeal succeeds only if the sentence is wrong in principle or clearly too high given the facts and applicable law.
Excepted matter (Northern Ireland Act 1998): A field reserved to the UK Parliament. Immigration is such a matter; Diaz uses this to justify UK-wide consistency in sentencing.
Common Travel Area (CTA): An arrangement among the UK, Ireland, and the Crown Dependencies permitting free movement for British and Irish citizens. Its abuse to circumvent immigration control is an aggravating feature in Diaz.
Operation Gull: A UK–Irish enforcement initiative targeting CTA abuse via Northern Ireland airports/ports; its relevance underscores CTA aggravation.
“Left on the books”: A colloquialism meaning a charge not proceeded with but not formally dismissed; it plays no part in sentence.
Attorney General’s References: Sentencing references to the Court of Appeal to calibrate or correct sentencing levels, often establishing or confirming ranges and principles.

Practice Guidance distilled from Diaz

Identify role and structure: organiser vs subordinate; single incident vs repeated conduct; evidence of planning and co-ordination; recruitment of others.
Aggravation checklist (non-exhaustive): repeated conduct, commercial motivation, strangers (not family), planning and organisation, multiple individuals, recruitment, exploitation or mistreatment, and, in NI, CTA abuse.
Range-setting: For many cases, expect a 3–8 year after-trial range. Serious organised or exploitative cases may merit higher sentences; minor humanitarian or one-off cases lower.
Mitigation: Distinguish genuine mitigation (e.g., substantial caring responsibilities, exceptionally limited role, demonstrable duress) from mere absence of further aggravation.
Plea credit: Up to one-third for early plea; robust evidence may justify smaller credits where the plea was not early or inevitable.
Parity: Ensure individualisation, but similar involvement within a concerted enterprise justifies comparable starting points; avoid using a co-defendant’s leniency as a lever to reduce an otherwise proper sentence.

Conclusion

Diaz is a pivotal Northern Ireland authority on sentencing for facilitating unlawful entry under section 25(1) of the Immigration Act 1971. It does three things of lasting significance. First, it explicitly aligns Northern Ireland with England & Wales case law, importing the Le & Stark framework and later refinements. Second, it recognises abuse of the Common Travel Area as an aggravating feature, reflecting the distinctive cross-border dynamics in Northern Ireland and the importance of Operation Gull. Third, it confirms that, notwithstanding the statutory maximum now being life imprisonment, a 3–8 year after‑trial range will remain appropriate in many cases and that immediate custody is ordinarily called for.

On the facts, the Court upheld a 4.5-year starting point (reduced to three years for plea) for Diaz’s role in a commercially motivated, organised, and repeated scheme involving strangers and CTA abuse. The judgment’s structured approach to aggravation, disciplined view of mitigation, and insistence on parity anchored in demonstrable roles provide much-needed clarity and predictability for future Northern Ireland sentencing in this area. Diaz will stand as the key reference point for section 25 sentencing in Northern Ireland going forward.

This commentary is for information and analysis only and does not constitute legal advice.