The law has been “misunderstood” by the Home Office and the Crown Prosecution Service in relation to asylum seekers in small boats, the Court of Appeal has found.
The ruling was made while quashing the convictions of three men who were wrongly jailed for “assisting unlawful immigration” by steering dinghies, according to The Independent.
Judges concluded the Channel crossings are not illegal and that a legal “heresy” developed, prompting asylum seekers to think they had no defence to the charge.
The judgement read: “As the law presently stands, an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom in order to make a claim is not entering or attempting to enter the country unlawfully.
“Even though an asylum seeker has no valid passport or identity document, or prior permission to enter the United Kingdom, this does not make his arrival at the port a breach of an immigration law.”
The case is putting pressure on the Home Office to provide answers after labelling those convicted of the offence as “people smugglers” and claiming small boat crossings were illegal.
Judges explained the actual law requirements were “not alive in the minds of the Border Force officers” dealing with the cases and that asylum seekers arriving in dinghies were wrongly given “notices of liability to detention”.
The judgement specified it was based on current law, but highlight the government’s attempt to change the law in order to prosecute asylum seekers for “arrivals”, not for “entries”.
The Nationality and Borders Bill would also raise the maximum sentence for assisting unlawful immigration to life, and illegal entries punishments would increase from six months to four years in prison.
The Court of Appeal considered the men were charged with facilitating unlawful entry to Britain after being filmed steering the small boats they travelled in – but concluded they did not commit the offence because they did not enter the UK.
The judgment read: “It appears that when drone technology enabled interception of the small boats at sea more regularly, and the number of small boats also greatly increased, criminal investigations and subsequent prosecutions were launched … without any careful analysis of the law and appropriate guidance to those conducting interviews, taking charging decisions, and presenting cases to courts.”
Judges also noted that the Immigration Act 1971, which was used to prosecute the men, was not a suitable law to use for the present immigration crisis.
They criticised the “flawed view” of what the law meant, which they said has been developing in courts working on such cases.
The Court of Appeal said there are currently seven other cases “raising similar points” scheduled for January, and demanded explanations from the CPS.
Related: France hits out at UK for ‘not taking its share of asylum seekers’
