Border Criminologies responds to Sentencing Council Guidelines on Immigration Offences

This post was written by Ananya Kumar-Banerjee and Vicky Taylor. Ananya studied Ethnicity, Race & Migration at Yale and is a Lincoln’s Inn GDL student, having previously worked at Detention Action. Vicky is a DPhil Candidate at the University of Oxford and coordinator of the Asylum and Border Criminologies thematic group. She recently authored the report “No Such Thing as Justice Here: The criminalisation of people arriving to the UK on ‘small boats’, published by Border Criminologies.

You can read the extended Sentencing Council Consultation responses here and here. 

On 20 March 2024, the Sentencing Council published a package of six new sentencing guidelines for consultation. These are the first standalone sentencing guidelines for immigration offences in the UK. The offences at hand include those expanded in 2022 under the Nationality and Borders Act: ‘illegal arrival’ and ‘facilitation’ (see previous work here), as well as identity document offences.

In two separate responses to the Sentencing Council’s consultation, Border Criminologies has directed the Council to amend these guidelines to accommodate a broader range of sentences, to more accurately reflect the lived realities of those sentenced. We have summarised our arguments here. 

Compatibility with international law

These proposed guidelines place undue penalties on individuals convicted of immigration offences, many of whom come to the UK, for example, to seek asylum. The right to seek asylum should be strongly considered in sentencing exercises where someone has made, or intends to make, an asylum claim. As our members have documented (see Vicky’s and Ana Aliverti’s work), people are being criminalised for the very act of seeking asylum in the UK. This is contrary to the UK’s obligations under the Refugee Convention, as well as the Palermo Protocol, and  Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings, as agreed by the UNHCR. Taken together, these instruments place strong obligations on states not to prosecute presumptive refugees for how they enter, or mutually assist others to enter a country to seek asylum there.

For the purposes of sentencing, given the sensitivity of criminalising people seeking asylum for simply ‘arriving’ to do so, we strongly advocate for a starting point of conditional discharge. This would better allow the UK to comply with its obligations. Currently, these guidelines fail to adequately consider those in this situation.

Ongoing immigration consequences

Many of those sentenced under these new guidelines will receive sentences of over 1 year: the threshold for triggering mandatory deportation processes. Even where deportation is not possible, in practice, many are detained in immigration detention following the end of their criminal sentence. This second form of custody, elsewhere, in Australia, for example, has been recognised as an additional punishment that needs to be justified as such (see: NZYQ). 

We encourage the sentencing council to more seriously consider the proportionality of sentences which could not only place someone in immigration detention, but have significant long term consequences on someone’s immigration status. Even if the person is allowed to remain, a sentence of over 12 months will certainly affect someone’s long term immigration status. In July 2023, the ‘good character’ requirement for British citizenship was strengthened, meaning that anyone with a 12-month custodial sentence will be restricted from accessing British citizenship ‘regardless of when or where the crime took place’. Part 9.4.1 of the Immigration Rules (as amended) states that any request for entry clearance or leave to remain must be refused if the applicant has received a custodial sentence of 12 months or more. Sentences matter for the long term stability of people criminalised.

Vulnerabilities

As Vicky has documented elsewhere, the new offences under NABA are being used against people arriving in the UK to seek asylum. Given the lack of alternative options, they are being criminalised for using the only routes available to them. These guidelines will lead to the extended and unnecessary incarceration of this population without clear provisions set in place to provide for such individuals. The Home Office has demonstrated a pattern of failing to adequately address the needs of those incarcerated in both prison and immigration detention. Those incarcerated because of their immigration status experience significant negative effects on both their physical and mental health, effects which continue after release. These guidelines do not sufficiently take these specific ‘vulnerabilities’ into account.

Access to Justice

Being incarcerated, whether in prison or detention, limits people’s ability to get legal advice regarding their immigration status. The Joint Committee on Human Rights has noted detention impedes individuals’ access to legal advice per ECHR Art. 6, which is often needed to address time sensitive imminent deportation and immigration law matters. The exceptions in the sentencing package, which allows for lower sentences where it would be “contrary to the interest of justice to do so in all the circumstances,” sets an inordinately high threshold.

We are concerned about the inability of victims of trafficking and torture to access specialised legal (and other) support while incarcerated, meaning this is often not taken into account in sentencing. We are also particularly concerned by the trend of children with ongoing age disputes being imprisoned for their ‘illegal arrival’ to the UK on ‘small boats’. As Vicky and the Humans for Rights Network have reported, age disputed children are regularly being prosecuted for steering dinghies across the Channel. To date, 20 have been identified, although this is almost certainly an undercount. Several of these have been pressured into accepting sentences as adults in order not to delay their release from prison. Unsurprisingly, children in such conditions report a rapid deterioration in their mental health, including experiencing acute depression, low self-worth, and hopelessness. The current guidelines do not take into account the realities of those being sentenced for these offences.

Conclusion

We are deeply concerned about the immediate and long-term impacts these guidelines will have on individuals moving through the immigration system in the UK. Overall, we recommend further clarity in sentencing provisions to ensure the possibility of non-custodial sentences, and encouraging better balance between the punitive nature of these sentences and the principle of proportionality. Such changes should be made considering the state of immigration processing, prisons, and immigration detention centres in the UK, all of which are in dire straits. 

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