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Prosecutors are alerted to the case of  EWCA Crim 435 (see section 25(1) guidance) in which there were difficulties in obtaining evidence of direct (financial) gain to support a charge under section 25A.
Prosecutors should consider whether there might be sufficient evidence to infer gain in return for assistance in facilitating a breach of immigration law by those who then may go on to (falsely) claim asylum.
Section 25(5) of the Act was replaced by section 30(1) of the UK Borders Act 2007 to confirm that the offence applies to acts committed in the United Kingdom, regardless of the nationality of the perpetrator, as well as acts committed overseas. Aggravating features include repeat offending; committed for financial gain; involving strangers rather than family members; a high degree of planning / sophistication; the number of immigrants involved and the level of involvement of the offender.
The offence is an either-way offence and the maximum sentence on indictment is up to 14 years' imprisonment. For guidance on non-commercial facilitation, see  EWHC 1094 (Admin) - see statutary defences: section 31 of the Immigration and Asylum Act 1999.
The offence covers any actions done whether inside or outside the UK, regardless of the nationality of the perpetrator.
No element of smuggling is required to make out the offence; the asylum seekers do not need to be illegal entrants.
However, in the case of  EWCA Crim 1610 the court dismissed the appellant's appeal against conviction in a case of assisting unlawful immigration even though the prosecution did not set out in the count the particular immigration law in relation to which it was alleged the appellant facilitated breaches.
The offence is an either-way offence and the maximum sentence on indictment is up to 14 years' imprisonment, a fine or both.
It is also a "lifestyle offence" under schedule 2 of the Proceeds of Crime Act 2002.
It is important to understand the difference between persons who are smuggled and those who are trafficked; in some cases the distinction between a smuggled and trafficked person will be blurred and both definitions could easily be applied.
It is important to examine the end situation when the victim is recovered to determine whether someone has been smuggled or trafficked.
Section 25(2) of the Act defines an immigration law as a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of that State, entitlement to enter, transit or be in the State.