Immigration Offences - New Sentencing Guidelines Being Proposed

A package of six new sentencing guidelines for offenders convicted of immigration offences in England and Wales have been published by the independent Sentencing Council following changes in legislation.

Under the proposals, judges and magistrates will - for the first time - have dedicated sentencing guidelines for immigration offences.

The draft guidelines seek to achieve consistency in sentencing and they reflect legislative changes to the Immigration Act 1971 brought in by the Nationality and Borders Act 2022. The Nationality and Borders Act introduced new maximum sentences for some immigration offences and created a number of new offences.

The consultation proposes sentences of up to 16 years in custody for the most serious offenders, such as those who facilitate the illegal entry of large numbers of people for commercial purposes in a manner that puts those individuals or rescuers at a high risk of serious injury or death.

Other proposed guidelines include sentences of up to eight years for possessing false identity documents with an improper intention, and three years in custody for knowingly entering the country illegally.

Currently, there are no sentencing guidelines for immigration offences, and courts sentencing such cases follow case law that has developed over time and the Council's General guideline, which provides guidance to judges and magistrates when sentencing offences for which there is no relevant offence-specific guideline.

Which offences will these guidelines cover?

The complete list of guidelines being proposed is:

• Facilitation offences which include: Assisting unlawful immigration to the UK (s25) and Helping asylum seekers to enter the UK (s25A) of the Immigration Act 1971

• Knowingly enters the United Kingdom without leave (s24(B1))/ Knowingly arrives in the United Kingdom without valid entry clearance(s24(D1)) of the Immigration Act 1971

• Breach of Deportation Order, Immigration Act 1971 s24(A1)

• Deception, Immigration Act 1971 s24A

• Possession of False Identity Documents etc with Improper Intention, Identity Documents Act 2010 s4

• Possession of False Identity Documents etc Without Reasonable Excuse, Identity Documents Act 2010 s6

The consultation will close on 12 June 2024, and we can expect final guidelines to be in force towards the end of this year.

Whilst as a matter of law a court should pay no regard to a consultation guideline, they do provide a useful yardstick by which to evaluate sentences and we will be keeping a close eye on cases to ensure sentencing law is being properly applied.