Part 3: Immigration Offences and Enforcement Immigration Offences and Penalties Section 41: Assisting unlawful immigration or asylum seeker
Overview: This section amends the facilitation offences in sections 25 and 25A of the Immigration Act 1971 ("the 1971 Act"), raising the maximum penalty from 14 years’ to life imprisonment and removing the requirement of facilitation being "for gain" in relation to section 25A.
	Background: Under section 25 of the 1971 Act, as currently in force, it is an offence to carry out an act (including outside of the UK) to facilitate the commission of a breach (or attempted breach) of immigration law by an individual who is not a UK national. Facilitation may include behaviour linked to recruiting, transporting, transferring, or harbouring. The required mental element is that the person doing the act must know or have reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual, and must know or have reasonable cause for believing that the individual is not a UK national.
	Under current section 25A(1), it is an offence for a person, knowingly and for gain, to facilitate the arrival or entry (or attempted arrival or entry) of an asylum seeker into the UK. Section 25A contains a requirement to prove gain. Gains from facilitation may be cash-in-hand, taken while abroad, or otherwise difficult to link back to facilitation, making this difficult to evidence in some prosecutions.
	This section removes the requirement to prove gain, broadening the section 25A offence, to allow the Home Office to charge more people for facilitating the arrival of asylum seekers to the UK. It remains the case that this offence does not apply to persons acting on behalf of an organisation which aims to assist asylum seekers and does not charge for its services.
	Section 25 offences currently attract a prison sentence of up to 14 years. This section increases the penalty to life imprisonment in order to discourage unlawful facilitation of migrants to the UK.
	Subsection 2 amends subsection (6)(a) of section 25, increasing the maximum custodial penalty for assisting unlawful immigration from 14 years to life imprisonment. By virtue of section 25A(4), the maximum penalty set out here also applies to the other offence of facilitating the arrival or entry of an asylum seeker to the UK.
	Subsection 3 amends section 25A(1)(a) of the 1971 Act, removing the requirements to demonstrate that facilitation has been for gain.
	Subsection 4 inserts new sections 25BA and 25BB into the 1971 Act. Section 25BA provides exclusions or defences to the section 25 and 25A offences where a person rescues another person at sea.
	Section 25BA(1) makes it clear that a person does not commit a facilitation offence if they are acting for, on behalf of or co-ordinated by HM Coastguard (HMCG) or overseas equivalent. This protects organisations such as the Royal National Lifeboat Institute (RNLI), independent lifeboats, and individual seafarers who first contact HMCG or who respond to a mayday relay issued by HMCG or equivalent search and rescue authority.
	Section 25BA(2) provides a defence for a person to show that the act of facilitation was to assist an individual who is in danger or distress at sea and the assistance is provided between the time of the individual first being in danger or distress and the time when they are taken to a place of safety. However, this is limited by subsection (3) in that the defence does not apply if delivery of the person is to the UK when this is not the nearest place of safety on land and there is no good reason for this. Subsection (3) also sets out that the act of steering a ship does not count as an act of assistance in the case where the steerer is on the same ship as the person being rescued. Subsection (4) sets out in statute that there is a burden on the defence to raise sufficient evidence that they were rescuing a person as set out in subsection (2) to raise an issue in respect of it and if they do so it is then for the prosecution to prove that this was not the case to the standard of beyond reasonable doubt. Subsection (5) provides definitions for the purpose of this section regarding "act of facilitation", "assisted individual", "facilitation offence" and "ship".
	The intention behind section 25BA is to ensure that suitable protections are in place for the RNLI and other seafarers whose actions are co-ordinated by HMCG but to allow for the investigation and potential prosecution of those acting in the absence of such co-ordination where there is doubt that they are genuinely rescuing people or may otherwise be acting as a "taxi service" to bring migrants to the UK. Good reasons for delivering assisted persons to the UK where this is not the nearest place of safety on land might include weather conditions or a commercial ferry continuing its scheduled route. The statutory defence will not be available to those persons steering these small boats as it is not acceptable that those who are assisting unlawful immigration in this way should be able to easily escape prosecution if they claim that they were doing so as an act of rescue. However, such individuals will still have access to defences available at common law.
	New section 25BB provides defences for the master of a ship and crew in relation to stowaways. Subsection (1) provides a defence to the master or person acting on the master’s behalf where a stowaway is discovered on board after leaving port and as long as they appropriately notify the authorities as soon as reasonably practicable before they then dock in the UK. It is also a defence under subsection (2) for crew members or passengers to provide humanitarian assistance to the stowaway so long as the presence of the stowaway is reported to the master of the ship as soon as reasonably practicable. Subsection (3) sets out in statute that there is a burden on the defence to raise sufficient evidence with regard to discovering and reporting the presence of the stowaway as set out in subsections (1) and (2) to raise an issue in respect of it and if they do so it is then for the prosecution to prove that this was not the case to the standard of beyond reasonable doubt. Subsection (4) provides a definition of a stowaway for the purpose of section 25BB and subsection (5) sets out when a person ceases to be a stowaway. Subsection (6) applies the same definitions as those in section 25BA.
	Section 25BA and 25BB ensure there is no conflict with the UK’s international maritime obligations. For stowaways on other modes of transport (i.e. aviation and international rail), investigative and independent prosecutorial discretion will be relied on, on a case-by-case basis, in deciding whether a prosecution is in the public interest, taking into account what security measures are in place to prevent access to potential stowaways.