Case Law Database

Smuggling of migrants

Offences

• Enabling illegal entry

R v Bani [2021] EWCA Crim 1958

United Kingdom of Great Britain and Northern Ireland

Fact Summary

Each of the four defendants is alleged to have steered a rigid hulled inflatable boat (RHIB) filled with a number of migrants from France to the UK. Each boat in the four cases aimed to enter the UK without the correct documentation. Each appellant was convicted of an offence contrary to section 25 of the Immigration Act 1971 for “Assisting unlawful immigration”. Three of the cases involve convictions by a jury, and in the fourth, the applicant pleaded guilty.
Defendant Bani- On 1st June 2019, Mr. Bani was one of six individuals – five adults and one child – on board a RHIB which was crossing the English Channel. The UK Border Force Coastal Patrol Vessel intercepted the boat and observed that the defendant was piloting the boat for approximately two minutes. UK border force examined Mr. Bani’s phone when he was arrested and found that the handset user had been involved in the purchase of a RHIB in April and another in May and had researched weather conditions in the Channel during the 48 hours or so prior to the relevant crossing on 1st June 2019.
Defendant Mohamoud Al Anzi- On 10th June 2020, Mr. Al Anzi was onboard a RHIB, along with twelve others, which was intercepted crossing the English Channel by a UK Border Force Coastal Patrol Vessel. He was found to be one of at least two people who steered the boat. He claimed the reason he wanted to migrate was because he was a Kuwaiti national who had fled the country in order to avoid the authorities due to him taking part in anti-government protests. His journey involved travelling from Germany to France and it was here that he was found unable to pay for passage to the UK. To continue his journey, Mr Anzi agreed to steer the boat in exchange for continuing his journey without any extra cost. Due to the assigned driver making an error, the boat began to spin dangerously. The defendant went to steer the boat and stop it from spinning. He then steered the boat towards the UK for around 20 minutes. The assigned driver then took over and drove the rest of the way.
Defendant Fariborz Taher Rakei-On 7th September 2020, Mr. Rakei, along with thirteen others, were attempting to cross the English Channel by boat when they were stopped by the UK Border Force. On 16th September 2020, he was arrested for assisting unlawful immigration. When interviewed, he admitted that he had piloted the RHIB during the crossing, but he only did so under duress because he was threatened by the smugglers whom he paid to make the journey to the UK. He stated that he had paid EUR1500 to the smugglers to travel to the UK.  He had not wanted to make the crossing by boat, but the smugglers told him that this was the only option available to him. According to his testimony, several smugglers were armed. He faced violence at the hands of the smugglers such as being hit in the face with the handle of an axe then dragged into the water, put onto the boat and told to steer it. He said that he was genuinely scared for his safety but felt that he had no choice but to steer the boat. Despite having previous military training and experience as a lifeguard, he denied that he had told the smugglers about this and that he had been given a cheaper passage if he offered to steer the boat. However, having such experience did mean he felt responsible for keeping the others safe.
Defendant Ghodratallah Zadeh- On 13th July 2020, Mr. Zadeh was intercepted by a UK Border Force whilst onboard an RHIB in the English Channel. There were thirteen people on board (twelve adults and one child). The defendant was identified as the driver. UK Border Force found aerial footage which confirmed that Mr. Zadeh was the driver. He also had no identification documentation. The defendant’s fingerprints were matched to an asylum claim in Switzerland. It was found that the defendant had previously driven the boat three or four times. However, he alleges that he didn't know how to pilot the boat, and the organizers of the journey told the migrants to just head for Dover. He said that he paid the organizers EUR 500 and that he would pay a further £500 through his family. His attempt to travel to the United Kingdom was a result of his application for asylum in Switzerland being refused.

Commentary and Significant Features

This case is noteworthy because it looks into the question: What is the mental element of the offence of facilitation?
To answer this question, courts must look at the defendant’s intention behind the act which facilitated the illegal entry into the UK. In this case, the defendants were not found guilty of the facilitation of illegal entry because they had the clear intention of being found by UK Border Force and claim asylum in the UK.
The case also represents instances of prosecutions being brought against acclaimed drivers of unseaworthy rubber boats and the interplay between smuggling of migrant charges and duress to protect one’s own and others’ lives.

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Procedural Information

Legal System:
Common Law
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
Accused were tried:
together (single trial)
 
 
Proceeding #1:
  • Stage:
    appeal
  • Official Case Reference:
    R v Bani [2021] EWCA Crim 1958
    • Decision Date:
    Tue Dec 21 00:00:00 CET 2021

    Court

    • Criminal

    Court Title

    Court of Appeal (criminal division)

     

    Location

  • City/Town:
    London

    • Description

    The grounds for appeal for defendant Bani, defendant Mohamoud Al Anzi and defendant Fariborz Taher Rakei:

    These three defendants did not plead guilty. Their grounds of appeal were based on a defence that was established in the precedent case of R v Kakaei. According to the Kakaei case, the offence in section 25 of the Immigrations Act 1971 could not be committed in situations where the defendant purposefully enters the UK without proper documentation with the hopes of being found by the UK Border authorities in order to claim asylum. This applied to all three of these cases as all three of the defendants intended to claim asylum in the UK.

    The grounds of appeal for defendant Ghodratallah Zadeh:

    The grounds for appeal were slightly different for this case as this defendant pleaded guilty. Instead, the grounds of appeal were based on the argument that he was incorrectly advised by his lawyer to plead guilty after being told there was no legal defence.

    The Court of Appeal decision:

    The Court ruled that the convictions against defendants Mr. Bani, Mr. Al Anzi, and Mr. Zadeh are to be dismissed. For defendant Rakei, a re-trial was ordered instead. with the court also dealt into the mens rea concept regarding the facilitation of illegal entry into the UK. The court believed there was an error due to the prosecution not being able to prove the mens rea of the offence (section 25 of Immigration Act 1971)- which is to knowingly enter the UK illegally or knowingly assist others to enter the UK illegally. Instead, it was found that the defendants intended to be intercepted by UK Border Force so that they could claim asylum in the UK. This means the defendants did not intend to facilitate illegal entry into the UK. Rather, in each case, the defendants steered their boat towards the port with the intention to being intercepted by UK Border Force in order to be taken to England and claim asylum.
     

    Outcome

  • Verdict:
    Reversal

    • Defendants / Respondents in the first instance

    Number of other accused:
    4
    Defendant:
    Samyar Ahmadii Bani
    Gender:
    Male

    Role in offending- the court asserts that this defendant is said to have steered a boat from France towards the United Kingdom, which was carrying migrants looking to enter the UK without prior leave.

    Defendant:
    Mohamoud Al Anzi
    Gender:
    Male
    Nationality:
    Kuwaiti

    Role in offending- the court asserts that this defendant is said to have steered a boat from France towards the United Kingdom, which was carrying migrants looking to enter the UK without prior leave.

    Defendant:
    Fariborz Taher Rakei
    Gender:
    Male

    Role in offending- the court asserts that this defendant is said to have steered a boat from France towards the United Kingdom, which was carrying migrants looking to enter the UK without prior leave.

    Defendant:
    Ghodratallah Donyamali Zadeh
    Gender:
    Male

    Role in offending- the court asserts that this defendant is said to have steered a boat from France towards the United Kingdom, which was carrying migrants looking to enter the UK without prior leave.

    Charges / Claims / Decisions

    Defendant:
    Samyar Ahmadii Bani
    Statute:
    Immigration Act 1971 (UK) Section 25
    Legislation / Statute / Code:

    Section 25 Assisting unlawful immigration to member State [or the United Kingdom]

    (1)A person commits an offence if he—

    (a)does an act which facilitates the commission of a breach [or attempted breach] of immigration law by an individual who is not [a national of the United Kingdom],

    (b)knows or has reasonable cause for believing that the act facilitates the commission of a breach [or attempted breach] of immigration law by the individual, and

    (c)knows or has reasonable cause for believing that the individual is not [a national of the United Kingdom].

    (2)In subsection (1) “immigration law” means a law which has effect in a member State [or the United Kingdom] and which controls, in respect of some or all persons who are not nationals of the State [or, as the case may be, of the United Kingdom], entitlement to—

    (a)enter the State [or the United Kingdom],

    (b)transit across the State [or the United Kingdom], or

    (c)be in the State [or the United Kingdom].

    [2A)In subsections (1) and (2), “national of the United Kingdom” means—

    (a)a British citizen;

    (b)a person who is a British subject by virtue of Part 4 of the British Nationality Act 1981 and who has the right of abode in the United Kingdom; or

    (b)a person who is a British overseas territories citizen by virtue of a connection with Gibraltar.]

    (3)A document issued by the government of a member State certifying a matter of law in that State—

    (a)shall be admissible in proceedings for an offence under this section, and

    (b)shall be conclusive as to the matter certified.

    [(4)Subsection (1) applies to things done whether inside or outside the United Kingdom.]

    (6)A person guilty of an offence under this section shall be liable—

    (a)on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or

    (b)on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.]

    [(7)In this section—

    (a)a reference to a member State includes a reference to [Norway or Iceland], ...

    Charge details:

    Assisting unlawful immigration to member State

    Verdict:
    Guilty
    Term of Imprisonment:
    5 years

    Samyar Bani was convicted on 7th November 2019. On the same day he was sentenced to six years' imprisonment. He initially sought, and obtained, permission to appeal only against his sentence. On 28th January 2020, the Court substituted a sentence of five years' imprisonment. Sentence overruled on appeal on 21. December 2021.

    Appellate Decision:
    Reversed
    Defendant:
    Mohamoud Al Anzi
    Statute:
    Immigration Act 1971 (UK) Section 25
    Charge details:

    Assisting unlawful immigration to member State

    Verdict:
    Guilty
    Term of Imprisonment:
    3 years 9 Months

    Mohamoud Al Anzi was convicted on 18 February 2021 of one offence of assisting unlawful immigration contrary to section 25 of the 1971 Act. On the same day he was sentenced to three years and nine months' imprisonment. Sentence overruled on appeal on 21. December 2021.

    Appellate Decision:
    Reversed
    Defendant:
    Fariborz Taher Rakei
    Statute:
    Immigration Act 1971 (UK) Section 25
    Charge details:

    Assisting unlawful immigration to member State

    Verdict:
    Guilty
    Term of Imprisonment:
    4 years 6 Months

    Fariborz Taher Rakei was convicted on 4 March 2021. On the same day he was sentenced to four years and six months' imprisonment. Sentence overruled on appeal on 21. December 2021.

    Appellate Decision:
    Reversed
    Defendant:
    Ghodratallah Donyamali Zadeh
    Statute:
    Immigration Act 1971 (UK) Section 25
    Charge details:

    Assisting unlawful immigration to member State

    Verdict:
    Guilty
    Term of Imprisonment:
    2 years

    Ghodratallah Zadeh pleaded guilty on 22nd October 2020 to assisting unlawful immigration to the United Kingdom and seven days later was sentenced to twenty-four months' imprisonment. Sentence ordered for retrial on 21. December 2021.

    Appellate Decision:
    Remanded

    Sources / Citations

    https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2021/1958.html&query=(migrant)+AND+(smuggling)

    Attachments