An asylum seeker jailed on smuggling charges for helping to steer a boat filled with migrants from France to England has had his conviction overturned at a retrial after spending 17 months in jail.
Lawyers and campaigners say the verdict could lead to other migrants currently in jail on smuggling charges being freed, allowing the Home Office policy of prosecuting asylum seekers who play a role in piloting boats across the Channel to be challenged more widely.
Fouad Kakaei, 31, was rescued by UK Border Force officials in July 2019 while crossing from France to the UK in a crowded dinghy with several others. He was deported to Denmark but made his way back to the French coast and was caught crossing the Channel a second time in December that year.
He admitted to UK authorities that he had taken a turn steering the boat because he “didn’t want to die at sea” and was sentenced to two years and two months in prison in January this year at Canterbury crown court. The court of appeal overturned the verdict in March 2021.
Lawyers for the Iranian successfully argued at his retrial this week that he should not have been found guilty of breaking immigration laws because he was intending to be rescued at sea so he could claim asylum.
Lawyers had hoped he would not face a retrial but the Crown Prosecution Service (CPS) brought the case back before a jury, despite the judge at Canterbury crown court advising that the case was “weak”.
In March Boris Johnson said that the government would “ruthlessly stiffen the sentences for anybody who is involved in this kind of people smuggling and trafficking human beings across the Channel”.
The CPS has faced criticism over previous decisions to prosecute migrants caught helping to steer boats from France to England, with charities saying the decisions could be linked to political pressure.
Kakaei’s lawyer, Aneurin Brewer of Red Lion Chambers, told the Guardian that this case could lead to other migrants currently serving jail sentences being freed.
“The critical point is that the individuals on the boat were intending to be rescued at sea and were not planning to disembark and enter illegally. That means there was no breach of immigration law.
“This verdict throws into serious doubt the viability of future prosecutions. A large number of cases had been paused while this specific case was resolved and it is difficult to see now how they can go ahead. It also raises very serious questions over the convictions that have been secured to date including migrants who are serving significant prison sentences. There are individuals who pleaded guilty but who will now be potentially able to go to the court of appeal.
“Our case here was unusual in that he had crossed the Channel twice and the first time, for specific reasons, he had not claimed asylum and was sent to Denmark where he attempted again to reach the UK. Despite this he has still been found not guilty. So there will be other cases stronger than his.”
A Home Office spokesperson said: “We are deeply disappointed by today’s verdict and are considering next steps in conjunction with the Crown Prosecution Service.
“The government is it determined to crack-down on the criminals who bring facilitate illegal entry into the UK and put lives at risk.”
A CPS spokesperson said: “We have been working with law enforcement agencies to develop updated immigration legal guidance, setting out our approach to small boats and other illegal entry cases, which will be published shortly.”
