Part 3: Immigration Offences and Enforcement Immigration Offences and Penalties Section 40: Illegal Entry and Similar Offences
Overview: This section creates two new criminal offences of arriving in the UK without a valid entry clearance or electronic travel authorisation (ETA) where required, in addition to the existing offence of entering without leave. This section increases the maximum penalty for those returning to the UK in breach of a deportation order from 6 months to 5 years, and for entering without leave or arriving without a valid entry clearance or ETA, or overstaying a grant of leave, from 6 months to 4 years.
	Background: The offence of knowingly entering the UK without leave is currently set out in section 24(1)(a) of the Immigration Act 1971 ("the 1971 Act"). "Leave" refers to permission, under the 1971 Act, to enter or remain in the UK – such leave may be limited in terms of duration, or indefinite.
	The concept of "entering the UK without leave" has caused difficulties about precisely what "entering" means in the context of the current section 24(1)(a) of the 1971 Act.
	"Entry" is defined in section 11(1) of the 1971 Act as meaning disembarking and subsequently leaving the immigration control area. Where a person is detained and taken from the area, or granted immigration bail, they are not deemed to have entered the UK.
	The offence of knowingly entering the UK without leave dates back to the original version of the 1971 Act. Entering the UK without leave is no longer considered entirely apt given the changes in ways in which people have sought to come to the UK through irregular routes.
	This section creates two new offences so that it encompasses arrival, as well as entry into the UK. The intention is that these new offences of people arriving in the UK without a required entry clearance (EC) or ETA apply to everyone who requires an EC or ETA on arrival. These offences will cover all asylum claimants who arrive without the necessary EC or ETA. As a matter of law, refugees will be in scope of the offence but decisions on prosecutions remain a matter for the Crown Prosecution Service (CPS) in England and Wales, the Crown Office and Procurator Fiscal Service (COFPS) in Scotland, and the Public Prosecution Service (PPS) in Northern Ireland, who will take into account the public interest test.
	This will allow prosecutions of individuals who are intercepted in UK territorial seas and brought into the UK who arrive in but don’t technically "enter" the UK.
	The definition of "immigration law" in section 25(2) of the 1971 Act is consequently amended to encompass arrival in the UK in addition to entry to allow for prosecutions of those who facilitate the arrival or attempted arrival of persons in breach of immigration law.
	The offence set out in section 24(1)(a) of the 1971 Act also covers knowingly entering the UK in breach of a deportation order. Currently, entering the UK without leave or in breach of a deportation order can carry an unlimited fine and/or a maximum of 6 months’ imprisonment (section 24(1)(a)). The Government’s assessment is that the current maximum term of imprisonment does not provide a sufficient deterrent to those seeking to enter the UK without leave. It is also considered that the current maximum term of imprisonment does not reflect the seriousness of the offence, in particular where there are factors such as where conduct endangers life.
	This section raises the maximum term of imprisonment to create a stronger deterrent and with the intention of disrupting the activities of organised criminal groups, including those involved in organised immigration crime. Raising the maximum term of imprisonment above 6 months automatically makes the offences triable in the Crown Court or magistrates court, and thereby subject to the same maximum as applies on conviction on indictment for the offence attempted.
	This section raises the maximum penalty for the offence of overstaying a grant of leave (section 24(1)(a)(b)(i) of the 1971 Act) from 6-months to 4-years. Raising the maximum term of imprisonment above 6 months automatically makes the offences triable in the Crown Court or magistrates court. The longer sentence length will ensure that the police, prosecutors and the courts consider the offence as serious enough to take through the Criminal Justice System. If individuals are given a sentence of 12 months or more it will make them subject to auto-deportation unless an exception applies.
	Subsections 1 and 2 set out that this section amends the Immigration Act 1971 and inserts new subsections A1 – E1 into section 24, which sets out illegal entry and similar offences. Subsections A1– E1 make it an offence to:
Knowingly enter the UK in breach of a deportation order (A1)
Knowingly enter the UK without permission to do so (B1)
Knowingly remain beyond the time limited by the leave, if having only a limited leave to enter or remain in the UK (C1)
Knowingly arrive in the UK without valid entry clearance (D1), otherwise known as a visa (see the Glossary at Annex A for full definition)
Knowingly arrive in the UK without a valid electronic travel authorisation (E1).
	A summary conviction of any of these offences, in England and Wales, will result in up to six months’ imprisonment (moving to 12 months when paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 comes into force), a fine, or both. In Scotland, up to 12 months’ imprisonment, a fine of up to £5,000 (the statutory maximum), or both. In Northern Ireland, up to 6 months’ imprisonment, a fine of up to £5,000 (the statutory maximum), or both.
	A conviction on indictment for an offence of knowingly entering in breach of a deportation order (A1) will attract a prison sentence of up to 5 years, a fine, or both. A conviction on indictment for an offence under B1, C1, D1 or E1 will attract a prison sentence of up to 4 years, a fine, or both.
	Subsection 3 removes 24(1)(a), as the offence to enter in breach of a deportation order or without permission is now covered in new subsections A1 and B1, and replaces 14(1)(b)(i) with subsection (C1). This subsection also amends references to the offence under 24(1)(a) for the purpose of extending the time limit for prosecutions provided for by way of section 28(1) of the 1971 Act, substituting it with relevant references to A1, B1, D1 and/or E1. However, it should be noted that by virtue of the offences in new subsections A1 – E1 now being triable either way, there is no time limit for prosecutions and therefore no statutory requirement to extend the time limit as there would be for summary only offences.
	This subsection also amends subsection 4 and inserts new subsection 5, which provides that, in legal proceedings relating to an offence under D1, a document, such as a vignette, attached to a passport or travel document will be considered evidence of entry clearance if it has been issued by the Secretary of State for the period covering the time of arrival. In both cases (B1 and D1), the burden of proof lies on the defendant to prove that he or she had leave to enter or valid entry clearance as appropriate.
	Subsection 4 amends section 25 of the 1971 Act, (criminal offence of assisting unlawful immigration) to include arrival in the UK as part of the definition of "immigration law". The meaning of "immigration law" as provided in current section 25(2) means a law which controls non-UK nationals’ entitlement to enter the state, transit across the state, or be in the state. This limits the application of section 25 in practice. As noted regarding the offence of entry without leave, migrants who are intercepted at sea and are brought into an immigration control area may not have "entered" the UK unlawfully and so a person facilitating their journey may not be charged with assisting a breach of immigration law for that offence. This amendment will ensure that the offence of facilitation also applies to those assisting persons to arrive in the UK without a valid entry clearance.
	Subsections 5 to 9 amend references to section 24 and 24(1)(a) to reflect the revised offences.