Kakaei, R. v

Factual and Procedural Background

On 4th September 2020, in the Crown Court at Canterbury, His Honour Judge O'Mahony ruled on a legal issue before trial in a case involving the Appellant. Following this ruling, the Appellant changed his plea to guilty on two counts of assisting unlawful immigration contrary to section 25(1) of the Immigration Act 1971, relating to two occasions of piloting a boat across the Channel with illegal migrants on 24 July 2019 and 29 December 2019. A third count relating to 12 December 2019 was ordered to lie on the file.

Separately, the Appellant pleaded guilty to unlawfully entering the United Kingdom on 29 December 2019 under section 24 of the Immigration Act 1971 and was sentenced to four months imprisonment on 31 December 2019. On 21 January 2021, he was sentenced to 26 months imprisonment concurrently on each count by HHJ Weekes, with ancillary orders made.

Leave to appeal against conviction was granted by the full court, and the Appellant also applied for leave to appeal against sentence. At the hearing, the appeal was allowed, with reasons to be provided later. The court also directed written submissions on whether a re-trial should be ordered, which was to be dealt with subsequently.

The Appellant was represented by Attorney Brewer before both the Crown Court and the appeal court. The Respondent was represented by Attorney Marsland, who did not appear below. The court acknowledged the assistance of both counsel, particularly noting Attorney Marsland’s correction of the prosecution’s position.

The relevant provisions of the Immigration Act 1971 were appended to the judgment.

The Appellant pleaded guilty on a factual basis accepted by the sentencing judge. The Defence Case Statement detailed that following refusal of his asylum claim in Denmark in April 2019, the Appellant, along with other migrants, repeatedly attempted to enter the UK as genuine asylum seekers on 24 July, 12 December, and 29 December 2019. He asserted he made near nightly attempts, was routinely detained, and resided in migrant camps near Dunkirk. Regarding the Channel crossings on 24 July and 29 December, the Appellant stated the crossings were planned by others, he paid agents for passage, and helped steer the vessel at points during the journey. On the second occasion, he initially refused to help steer but later assisted when he believed others could not safely do so and lives were at risk. He believed all passengers intended to claim asylum immediately upon disembarkation.

The Basis of Plea acknowledged the Appellant’s guilty plea to counts 1 and 3 to the limited extent of facilitating entry by helping pilot the vessels. He denied any financial motive and stated he paid a people smuggler like others on board. He asserted belief that all migrants intended to claim asylum immediately and that he was a genuine refugee fleeing persecution due to sexuality.

Prosecution evidence showed on 24 July 2019, the Appellant and 26 undocumented migrants were stopped by UK Border Force officers while crossing the Channel in a rigid hull inflatable boat (RHIB), with the Appellant operating the rudder. The migrants applied for asylum immediately upon disembarkation. The Appellant refused to provide the phone PIN or apply for asylum and was returned to Denmark. On 29 December 2019, the Appellant and 10 migrants were intercepted similarly, with the Appellant again piloting the boat. On this occasion, he applied for asylum citing risk of persecution in Iran due to sexuality. Investigators found mobile devices on the Appellant and noted he refused to provide the phone PIN, though they accessed it later. None of the migrants had documentation.

The Appellant was interviewed under caution on 29 December 2019 and 13 March 2020. He stated his intention was to claim asylum in the UK and denied financial gain. He acknowledged piloting the boat partially but denied sole control on the first crossing; he admitted sole piloting on the second as no one else knew how. He explained not claiming asylum in July 2019 was due to prior refusal in Denmark.

All parties traveled from France, a safe country, without documentation. The Appellant pleaded guilty to unlawful entry on 29 December 2019 under section 24. The indictment counts were amended to specify the breach of immigration law under section 25(1) of the Immigration Act 1971, alleging the Appellant facilitated illegal entry of non-EU persons who were breaching immigration law.

There was no evidence that other migrants had been convicted under section 24, but the judge assumed the Appellant’s conviction could prove unlawful entry on 29 December 2019 and by extension that all other entries on both occasions were unlawful, a matter for the jury if the case had proceeded to trial.

Thus, while the case allowed consideration of general legal principles, it uniquely involved evidence of unlawfulness from the Appellant’s own guilty plea.

Before the trial judge, counsel for both sides believed there was conflicting authority requiring a pre-trial ruling on the law. The prosecution argued the Appellant had no defence; the defence sought clarity to decide on plea. The judge’s ruling centred on whether the facts fell within the precedent set by R v Kapoor or R v Bina, with the prosecution relying on Bina and the defence on Kapoor.

The judge ruled in favour of the prosecution, concluding that the illegal entrants would have committed an offence under section 24 and that the Appellant’s facilitation amounted to assisting unlawful immigration under section 25. The judge treated the “de minimis” point—that the Appellant’s limited piloting could not amount to facilitation—as a jury question, though it was abandoned by the defence before the appeal court.

Leave to appeal was granted on the basis that the judge erred in distinguishing the case from Kapoor, which held that intending to claim asylum immediately on arrival did not breach immigration law, and that the judge wrongly accepted that the Appellant’s own guilty plea to unlawful entry was relevant to the issue. The defence argued the ruling deprived the Appellant of a viable defence, rendering the conviction unsafe.

The full court recognized a tension between the decisions in Kapoor and Bina and the need for clarity given the prevalence of such offences. The prosecution initially conceded that the judge’s ruling deprived the Appellant of a defence but later withdrew that concession after reconsideration.

The appeal court was tasked with determining the consequence of the incorrect ruling and the correct legal position, noting the judge had not benefited from the full legal analysis now presented by the prosecution’s counsel.

Legal Issues Presented

1. Whether, under the Immigration Act 1971, an offence under section 25 of assisting unlawful immigration can be committed where the individuals whose entry is facilitated are asylum seekers intending to claim asylum immediately upon arrival.
2. Whether the judge erred in ruling that the Appellant’s facilitation of entry amounted to assisting unlawful immigration under section 25, notwithstanding the Appellant’s own guilty plea to unlawful entry under section 24.
3. The proper interpretation and relationship between sections 11, 24, 25, and 25A of the Immigration Act 1971 regarding entry, arrival, and facilitation offences.
4. Whether the Appellant’s guilty pleas entered following the judge’s ruling were safe, considering the alleged deprivation of a viable defence.

Arguments of the Parties

Appellant's Arguments

• The case of R v Kapoor applies, establishing that if a person with no right to enter arrives at a port and immediately claims asylum, no breach of immigration law occurs, and thus no offence of assisting unlawful immigration under section 25 is committed.
• The Appellant denied any financial motive and asserted he paid smugglers like other migrants.
• The Appellant contended that all migrants intended to surrender to authorities and claim asylum immediately upon disembarkation, negating the offence under section 25.
• The Appellant argued that the judge wrongly relied on his own guilty plea to section 24 as evidence of unlawful entry by others and as a basis to remove defences.
• The ruling deprived the Appellant of a realistically viable defence, making his conviction unsafe.

Respondent's Arguments

• The facts differ from Kapoor, which involved arrival at an approved port area; here, migrants crossed from one member state to another without documentation and did not arrive at a port with an approved area for asylum claimants.
• The case of R v Bina governs, holding that facilitation of breach of immigration law applies even where migrants are asylum seekers, particularly where they commit offences in other member states en route.
• The Appellant’s own guilty plea to unlawful entry under section 24 is relevant and admissible evidence.
• Although the judge’s ruling was wrong in law, the Appellant’s pleas remain admissions of offence and should be upheld.
• The “de minimis” defence was abandoned and the Appellant’s facilitation by piloting the boat constitutes facilitation of unlawful entry.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the interaction of sections 11, 24, 25, and 25A of the Immigration Act 1971, focusing on the legal distinction between "arrival" and "entry" into the UK. Section 11 deems a person arriving at an approved port area not to have entered the UK until leaving that area, which is critical in determining whether unlawful entry under section 24 has occurred.

The court analyzed the competing authorities of R v Kapoor and R v Bina. Kapoor involved asylum seekers arriving at an airport and remaining in an approved area, thus not committing unlawful entry, whereas Bina involved facilitation of breaches of immigration law in other member states prior to UK arrival, with no intention to claim asylum immediately upon arrival.

The judge below had ruled that the Appellant’s facilitation constituted assisting unlawful immigration under section 25, relying on Bina and distinguishing Kapoor. However, the appeal court found this ruling legally incorrect because it failed to consider whether the migrants arrived at a port with an approved area and intended to claim asylum immediately, which under section 11 could mean no unlawful entry occurred.

The court noted that the judge improperly relied on the Appellant’s own guilty plea to section 24 as conclusive evidence that others also committed unlawful entry, without allowing for evidential challenges and jury determination.

Regarding the safety of the convictions, the court applied the principles from R v Asiedu and R v Chalkley, recognizing that a guilty plea following an adverse legal ruling that removes all viable defences may be unsafe if the ruling is wrong. The court found that the judge’s ruling removed the Appellant’s viable defences, compelling his guilty plea.

Although the "de minimis" defence (that limited piloting could not amount to facilitation) was left open, it was abandoned by the defence as hopeless. The court held that the erroneous ruling deprived the Appellant of the only viable defence, rendering the convictions unsafe.

The court emphasized the importance of clear procedural formulation when determining points of law pre-trial and the necessity of full and accurate facts before such rulings. It concluded the judge should not have given a ruling of law at that stage but left the factual issues to be resolved at trial.

Finally, the court acknowledged the complexity of ordering a re-trial given the Appellant’s imminent release and the practical consequences, inviting submissions on the public interest before deciding on re-trial.

Holding and Implications

The court held that the Appellant’s convictions were UNSAFE and quashed them.

The direct effect is that the Appellant’s convictions based on guilty pleas following the erroneous legal ruling were overturned. Subsequently, a re-trial was ordered and held, resulting in the Appellant’s acquittal.

No new precedent was established beyond clarifying the proper interpretation and application of the Immigration Act 1971 provisions in the context of asylum seekers and facilitation offences. The decision underscores the necessity for careful legal analysis before trial and the protection of defendants’ rights to viable defences.