The accused in this case, a man of Pakistani background living in the UK, was charged with offences relating to migrant smuggling for providing necessities, including accommodation and financial support, to his younger brother and other family members between June 2007 and March 2009. They had come to the UK to apply for asylum but their application was rejected and they returned to Pakistan in 2006. Eighteen months later they returned to the UK on visitor's visas and applied for asylum a second time, after their visa expired. The accused's younger brother also helped out in the accused's shop on several occasions. The accused was charged and convicted in November 2010 but had his sentence reduced on appeal.
A court later specifically noted that the accused did not act to achieve any financial or material benefit.
Crown Court
MA was charged with one count of facilitating the commission of a breach of immigration law under s 25(1) of the Immigration Act 1971 (UK). He pleaded guilty on 8 October 2010 and was sentenced on 5 November 2010.
The Recorder, with reference to R v Van Binh Le & Stark [1999] 1 Cr App R (S) 422, noted that MA's offending in this instance was far less serious than that in Stark. The Recorder also referred to the fact that only the most minor of offences against s 25(1)(a) of the Immigration Act 1971 (UK) would not warrant a custodial sentence. On this basis, the Recorder sentenced MA to 12 months' imprisonment.
Court of Appeal (Criminal Division)
Counsel for MA submitted that in light of MA's plea of guilty, the sentence of 12 months' imprisonment was manifestly excessive and out of line with decisions of the court in respect of analogous offences.
In light of the decision in R v Kanersarajah [1993] AC 674 the Court of Appeal initially questioned whether or not MA had in fact committed an offence under s 25(1)(a) Immigration Act 1971 (UK). However, it was clear that MA genuinely and sincerely believed that if SA was removed from the United Kingdom to Pakistan he would face a real risk of suffering. In this way MA had provided SA with financial assistance and accommodation, with guilty knowledge that he was an illegal immigrant. In this way, the Court of Appeal was satisfied that MA had in fact committed an offence under s 25(1)(a) Immigration Act 1971 (UK). The Court of Appeal considered that because no fraudulent documents were created in this instance, the assistance provided by MA to SA did not involve any deception and was therefore less serious. As well as this the Court of Appeal noted that MA did not profit in any way from assisting SA. For these reasons the Court of Appeal considered that MA's offending was on the lower end of the spectrum and considered that a sentence of 4 months' imprisonment was appropriate.
The smuggled migrants were all related to the accused and also included his younger brother.
At the time of the appeal, the second asylum applications of the smuggled migrants were still under consideration.
SA, the smuggled migrant, was the younger brother of MA. At the time of appeal, MA was 42 years of age and was a man of previous good character.
MA was the only party involved in this offending. He was the older brother of one of the smuggled migrants and was related to the others.
Court of Appeal (Criminal Division)
R v MA [2011] 2 Cr App R (S) 47
This entry was copied from The Migrant Smuggling Case Database, launched by the University of Queensland Migrant Smuggling Working Group in August 2013.
The case provides an illustration of a case in which the accused is motivated by the desire to assist his family members to remain in the UK, without pursuing any profit motive. The facts of the case are such that they would not be considered a case of smuggling of migrants under the UN Protocol against the Smuggling of Migrants; however UK law also criminalises instances of assisting unlawful immigration in which the accused does not seek to gain a financial or material benefit.