First criminal conviction due to an immigration breach – NEWS 26 September 2023

The case of R v Ginar is one of the first cases in which someone has been convicted of a criminal offence due to an immigration breach, following the recent changes in the law. In this case, the defendant was a Turkish national and was with more than 50 other foreign nationals who were passengers on a rigid inflatable boat that had been intercepted by a UK Border Force vessel as it sailed from France into United Kingdom territorial waters.

In accordance with Section 24(D1) of the Immigration Act of 1971 (IA 1971), the Court of Appeal (Criminal Division) provided guidance on the sentencing of adults who attempt to arrive in the UK without valid entry clearance. There was also no previous judgement present concerning such matter. The defendant had pleaded guilty before the Magistrates’ Court to the offence and was sentenced to 8 months’ imprisonment.

The following are a few of the court rulings.

1. The offence was serious enough that the threshold for custody would usually be crossed, and an appropriate sentence, before taking into account any additional accountability, any credit for his guilty plea and other circumstances, would be 12 months’ imprisonment.
2. The defendant would have been aware that he was attempting to enter the UK illegally, which was a significant element of accountability involved in the offence.
3. Accountability would have been raised if the defendant had participated in the creation or operation of the means by which he had entered the UK, for example, if he was operating a vessel rather than being a passenger, or if he had been trying to enter with the intent to engage in crime (such as by participating in trafficking).
4. Accountability would have been minimised if the defendant had sincerely intended to apply for asylum on reasonable grounds.
5. A lack of relevant convictions, good character, youth, a mental illness or learning disability, or the fact that the defendant participated in the offence under pressure would all be considered mitigating circumstances.

In consideration of the defendant’s repeated attempts to enter and remain in the UK, the court dismissed the argument that the recorder had made an error by treating his immigration history as an aggravating factor. His repeated attempts had made the case more serious. Thus, the court determined that the sentence of 12 months in prison, which was later reduced to 8 months after his guilty plea was considered, was not disproportionate. The defendant was therefore denied the right to appeal the sentence.

If you have queries or require support with any immigration matters, please feel free to contact Lumine Solicitors on 020 3950 2246 or Contact Us HERE