Judge Simon James begins his sentencing remarks at Canterbury Crown Court to a room empty of any defendants. Instead, the young person to whom the remarks are addressed is visible only on a small TV screen hanging in the corner. He’s actually in a prison elsewhere in Kent, slumped in a chair in a small room, connected to the court via a video link.

The young person is from Sudan. He is being prosecuted for a crime that did not exist a year ago: arriving in the UK “without a valid entry clearance”. He has admitted to boarding a small boat in France and crossing the English Channel into UK waters in order to be brought to shore and claim asylum. (He was initially accused of piloting the boat he travelled in, but this charge was dropped due to lack of evidence.)

The Nationality and Borders Act, introduced in 2021 by then-home secretary Priti Patel, passed through Parliament last year. It amended section 24 of the 1971 Immigration Act, closing a loophole in the original law: it no longer matters that this young person intended to claim asylum upon arrival.

In March, a Court of Appeal ruling confirmed that Article 31 of the United Nations 1951 Refugee Convention – which requires signatory states not to penalise refugees who enter a country illegally – does not defend against the crime of unlawful arrival. That means people seeking asylum are not exempt from prosecution.

I am using the term ‘young person’ because the individual sitting in this digital dock says he is 16. The court’s own attempts to assess his age, based on his visual appearance, have resulted in him being treated as an adult within the criminal justice system. Yet decision-making about age based on visual assessment of appearance and demeanour is widely recognised as problematic, including in the Home Office’s own guidance, which calls it “notoriously unreliable”.

The Council of Europe agrees: “There is currently no procedure that can estimate age with determinative accuracy, and all methods have a wide margin of error.“

The young person continues to attest that he is a child, while accepting that any lawful assessment by social workers (known as Merton-compliant age assessment) would delay court proceedings beyond the expected sentence, preventing him from being able to leave prison, where he is held on remand.

Defence counsel suggested that the judge could offer a third off the sentence in mitigation, because the defendant entered a guilty plea at the earliest opportunity – meaning that he would walk free today on time he has already served.

But James takes a different tack, instead offering only a quarter off the sentence because, in his view, the young man delayed proceedings by attesting that he is a child – something that, in the court’s opinion, was untrue. He must stay in prison – but only for a few more days. This decision makes only the slightest difference to the actual sentence (nine months rather than eight, of which half must be served in custody) and seems pointlessly cruel.

The judge rises and exits the courtroom. The young person in the video doesn’t look up. He continues to sit, occasionally wiping his eyes on his T-shirt as his solicitor and the court interpreter attempt to console him via the in-court microphone.

Even though the court treated him as an adult today, when he is finally released from adult prison, it will be into the care of children’s services, who will themselves decide the veracity of his claim to be a minor.

‘Illegal entry’

There were other asylum seekers in front of James that day.

Another Sudanese man, aged 24, had also been charged with the same section 24 offence of “illegal entry”. He has been in prison on remand since July 2022, and the nine-month sentence the judge handed down (of which only half needs to be served in custody) has therefore already been exceeded by many months.

James’s sentencing remarks in this case are so charged they could have been lifted from a Home Office press release: “You are just one of thousands who, in the last year or so, have attempted to gain illegal entry into the United Kingdom while trying to navigate the English Channel in a small, unseaworthy, overcrowded boat. In doing so, you put yourself and others in danger, and forced the coastguard to commit considerable time and resources to come and rescue you.

“This is a prevalent offence generating widespread and considerable public concern – particularly considering the unprecedented pressure attempts to circumvent immigration controls in this way is placing on already stretched public resources. Any attempt to evade immigration control has a capacity to undermine a nation’s security.

“This is a method of illegal entry that is generating substantial profits for organised criminal gangs. In such circumstances, sentences need to carry an element of deterrent.”

In the next case, James gives a three-year prison sentence to a 28-year-old man who has pleaded guilty to the more serious offence of “facilitating entry” (section 25 of the 1971 act) to the UK of those without leave to arrive or enter. A few hours later, the Home Office posts a tweet celebrating the conviction of a “small boats pilot”.

Later, in a different courtroom, another young man is given eight months in prison for the “illegal entry” offence.

No alternative

Recent research by Oxford University’s Centre for Criminology claims that, in the year to June 2023, “over 185 people have been charged with either Section 24 or 25” offences following small boat crossings into UK territory.

The Crown Prosecution Service (CPS) accepts that imprisoning an estimated 50,000 people – the number expected to cross the Channel in small boats this year – would not be in the public interest. Therefore, it says it is only going after cases with “aggravating factors”, including those who “had their ‘hand on the tiller of the dinghy’, however temporarily”.

Each person appearing in Canterbury Crown Court on 28 June had fled Sudan, where conflict has been raging for several years, recently reaching new levels of horror.

There is no entry clearance visa these people could have applied for, from outside the UK, in order to enter the country and claim asylum. But in order to lodge an asylum claim, they must be in the UK. It’s a Catch-22.

So they got on boats in Calais and set course for Dover. None profited from navigating the Channel – these are not hardened people smugglers – and yet they each pleaded guilty to the offences they were charged with, perhaps because their legal representatives had warned them there was no defence in law to their actions.

The emotional impact of seeking sanctuary in the UK only to be locked up in prison will be severe. It is yet to be determined how being criminalised will affect their claims for asylum and their ability to remain here in the UK.