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Egyptian sentenced for steering boat across the Channel; UN working group warns prosecuting migrant smugglers can perpetuate gross injustice


Home Office says anyone steering boat faces prosecution, but Working Group on the Smuggling of Migrants notes determining who to charge is a delicate affair

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News media reported last week that an Egyptian man was sentenced to 38 months in prison after being found guilty of assisting unlawful immigration to the UK and attempting to enter the country illegally.

Boat at seaIn July 2022, 25-year-old Reda Hamoud Abdurabou steered a dinghy with 50 people on board as it crossed the Channel. The Home Office said on social media that photos taken during the crossing, which showed Abdurabou at the tiller, were seized and used as evidence against him.

According to the Daily Mail, Abdurabou accepted that he had piloted the boat for around an hour and a half, but he argued that the boat crossing was a joint venture and there were other people involved in piloting and navigating of the boat during the journey.

Sentencing Abdurabou at Salisbury Crown Court last Friday, His Honour Judge Timothy Mousley KC said the defendant was identified as the person who steered the boat. Mousely added that an increased sentence was imposed as it was not the defendant's first attempt to enter the UK unlawfully.

ITV News quoted Chris Foster, the Deputy Director of Criminal and Financial Investigations at the Home Office, as saying: "Anyone willing to take the helm of these small boats can expect to be arrested and prosecuted."

A timely report released last month by the United Nations' Working Group on the Smuggling of Migrants looks at the complex issue of who should be charged with the crime of migrant smuggling and who is and who is not a migrant smuggler.

The 11-page background paper can be accessed here.

The Working Group finds that determining who should be charged with the crime of smuggling of migrants is a delicate affair. It warns that the breadth of the definition of the crime, if not considered from a human rights perspective, can perpetuate a pattern of gross injustice against vulnerable groups protected in other areas of international law.

The report states:

26. A concerning trend that is increasingly being observed in recent studies on migrant smuggling is that the majority of "smugglers" who end up being charged in practice are low-level actors. For example, with regard to smuggling by sea to Spain along the north-west African route, the UNODC Observatory on Smuggling of Migrants found that counter-smuggling investigations and prosecutions focused on people who navigate the boat; 150 such arrests were recorded on this route in 2021 alone. These were often refugees or migrants navigating the vessel in return for free passage or a reduced price for their own smuggling. Often these drivers were also vulnerable and potentially victims of trafficking for purposes of forced criminality.

27. However, despite these ongoing challenges, there have been precedents from courts attempting to understand the nuances around the perceived participation of migrants and refugees in the smuggling process. In the United Kingdom of Great Britain and Northern Ireland, for example, courts have begun to critically consider the prosecution of asylum seekers and migrants who steer small boats in the smuggling of migrants across the English Channel. This started with the case of R v. Kakaei in 2021, and thereafter in the case of R v. Bani, where the court overturned three of four convictions of asylum seekers who had been charged with assisting unlawful immigration because of their role in steering inflatable boats filled with a number of migrants from France to the United Kingdom. The Court of Appeal focused on the mens rea element of the crime in all the acquitted cases. It was apparent that the ultimate intention of the accused persons was not to smuggle migrants, but to be found by the United Kingdom Border Force and apply for asylum.

The Working Group on the Smuggling of Migrants adds that criminal justice measures against the smuggling of migrants must be implemented in a way that ensures that asylum seekers and migrants are not denied access to their internationally protected human rights in the name of combating organised crime.