The government has vowed to jail asylum seekers for steering their own dinghies across the English Channel, claiming they could face life sentences.
It is pressing ahead with the “cruel” plans despite a warning from the UN Refugee Agency (UNHCR) that such prosecutions could violate the Refugee Convention and should not happen.
Ministers have been forced to change the law to allow the controversial charges, after judges ruled that it is not currently illegal to pilot boats to the UK in order to claim asylum.
The Home Office has not publicly acknowledged the ruling or apologised to at least 12 innocent asylum seekers who were wrongly jailed for steering dinghies between 2019 and 2021.
The Court of Appeal is expected to quash more convictions, after identifying a fundamental “error of law” that originated in the Home Office, then spread to prosecutors and the courts.
Laura Padoan, a spokesperson for the UNHCR, told The Independent: “A passenger who assists in steering a boat, either under duress or to ensure safe passage, and for no financial gain, is not a smuggler and should not be prosecuted as such.
“It is deeply concerning that the Nationality and Borders Bill currently before parliament would change the law specifically to criminalise people who claim asylum as soon as they arrive in the UK, a move that could result in a violation of article 31 of the 1951 Refugee Convention.
“The right to seek asylum is universal and is not dependent on the way in which someone arrives in the country.”
Addressing parliament on Tuesday, Priti Patel said the new laws and a deal struck to send asylum seekers to Rwanda were based on “fairness” and necessary to combat people smuggling.
“Every small boat incident will be investigated to determine who piloted the boat and could therefore be liable for prosecution,” the home secretary added.
“The long-term impact has to be breaking up the evil people-smuggling gangs and going after them with more prosecutions, making sure the pilots of those small boats are prosecuted.”
The Court of Appeal heard that asylum seekers previously jailed as “pilots” were not paid for steering the dinghies they travelled to the UK on, and were not part of organised crime groups.
Some of them said they had been pressured or threatened to steer, while others took the helm to stop boats sinking and tried to call authorities and flag down passing ships.
In response to questions from The Independent, the Home Office admitted that fresh prosecutions are dependent on the Nationality and Borders Bill being passed.
It would change the law on illegal entry to mean that anyone arriving in British waters without “valid entry clearance” commits an offence and can be jailed for up to four years.
That would allow prosecutions of asylum seekers who are intercepted in the Channel, and mean those steering the boats can be prosecuted for “assisting unlawful immigration” - with a new maximum sentence of life imprisonment.
The clause on illegal entry was changed by the House of Lords after peers including the former Lord Chief Justice said the plans would break international law, and will have to be re-inserted by MPs for a second time.
The bill also increases the sentence for the crime of assisting the unlawful immigration of an asylum seeker to life, and removes the current requirement for defendants to have acted for profit or gain.
A Home Office spokesperson said: “Under measures in the Nationality and Borders Bill, every small boat incident will be examined to determine who has been piloting the boat.
“These cruel people could face life sentences under the bill and in the meantime we continue to work with the Crown Prosecution Service (CPS) and National Crime Agency to crack down on and prosecute smugglers who risk lives for profit.”
The Joint Council for the Welfare of Immigrants (JCWI) accused the government of mounting a “wholesale attack” on the right to seek refuge.
Policy and advocacy manager Zoe Gardner added: “These people were left with no other option but to make dangerous journeys, and were often coerced into steering the boats by people smugglers.
“This government knows people crossing are simply seeking refuge here, but instead of creating the safe alternative routes that people desperately need, it’s looking to criminalise and deport people via its dangerous new borders bill, brandishing its cruelty towards migrants and refugees as a means of political point-scoring. We must resist these chilling plans at every turn.”
The government has opposed a House of Lords amendment to ensure that people can only be prosecuted for helping asylum seekers into Britain if they acted for personal gain, and rejected the addition of a “reasonable excuse” clause intended to protect rescuers at sea.
Backing the change in the House of Lords earlier this month, Liberal Democrat peer Lord Paddick said: “The government wants to criminalise those who facilitate those entering the UK without the correct prior authority, even if those doing so are not people smugglers and not acting for their own gain.
“The perhaps unintended consequence is that those rescuing drowning migrants in the English Channel, for example, commit an offence unless the rescue is coordinated by HM Coastguard or an equivalent organisation.”
The Home Office previously publicised a series of prosecutions for steering Channel boats, branding convicted asylum seekers “people smugglers”.
Twelve of the cases have so far been quashed by the Court of Appeal, which found that the law had been “misunderstood” by the Home Office and CPS, and that a legal “heresy” developed making asylum seekers believe they had no defence to charges of assisting unlawful immigration.
A ruling on four appeals in December said: “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.”
CPS guidance drawn up in July, following the first successful appeal by a jailed asylum seeker, said that it would not prosecute people for steering Channel boats if the “sole intention” is to be intercepted at sea or sail to a port in order to claim asylum.
