Seeking Asylum is not a crime! Victory in the Court of Appeal

Statement from Canel Halil of Emery Halil & Brown Solicitors. Canel was part of the legal team that quashed the convictions for asylum seekers who crossed the channel in small boats. Several were referred by Kent Refugee Help.

‘The successful appeal and subsequent acquittal of Fouad Kakaei, and the successful appeals which have now followed from it, represent a fundamental victory for those individuals forced by circumstances beyond their control to seek sanctuary and safety from a world that is thankfully alien to the majority of us. What compels people such as Mr Kakaei to risk their lives in flimsy, unseaworthy boats in order to seek asylum is lost by those who use these people as political footballs when they try and kick them back across dangerous waters. 

Heroes come in many guises. And Mr Kakaei is a hero for this cause. Having been arrested, prosecuted and wrongly imprisoned in December 2019 for an immigration offence, his misery was compounded at the end of his sentence when he was again visited by Immigration Authorities and told he was now being further prosecuted for a facilitation offence that carries up to 14 years imprisonment. It would have been easy for Mr Kakaei at that stage to ignore the legal advice that I gave to him in the cells at Medway Magistrates Court at the beginning of the pandemic that he was not guilty and he should fight to prove his innocence. It would have been easy for him to reject the advice of his Counsel, Mr Aneurin Brewer, that he had a defence to the charges. It would have been easy for him to adopt what had become the standard practice in the local courts of pleading guilty to receive the maximum discount off the routine 2-3 year sentence of imprisonment and stay quiet! And it would have been easy, some may even have said sensible, for him to have pleaded guilty at the commencement of his re-trial after his successful appeal in order to secure his immediate release as he had by then already served his entire (unlawful) prison term!

But Mr Kakaei kept his faith in himself and I am pleased to say his legal team. Despite the concerted efforts of the Crown Prosecution Service to secure his conviction having maintained an interpretation of the law which the Court of Appeal has now ruled was a “legal heresy”, Mr Kakaei finally left prison a free, and more importantly, an innocent man! Thankfully, others now tread a similar path, despite the continued efforts of the State to argue for their criminalisation and imprisonment. 

The Government’s answer to these cases has been to enact their Immigration and Borders Bill which will junk the protections enshrined in the 1951 Refugee Convention for those desperate to seek asylum in the UK and for humanitarians who help them.

As a footnote, I hope that Mr Kakaei’s case, and those of the other successful Appellants, highlights the importance of a properly funded independent legal profession. For as many years publicly funded criminal defence practitioners have struggled to keep our profession and practices alive in the face of critical legal aid cuts. Without properly funded defence practitioners innocent people such as Mr Kakaei have passed through the courts at break neck pace and been advised to take their medicine and plead guilty or take their punishment without much challenge. If the Government continues to cut rather than invest in legal aid it will force firms to close or offer a cut-price service, and access to justice for people such as Mr Kakaei will be “lost at sea”. This is an SOS on all fronts.

About