London, United Kingdom – Fouad Kakaei laughed when British authorities showed him photographs of him steering an inflatable dinghy over the Channel from France.
“It was ridiculous,” he said, referring to the moment he was questioned at the port of Dover in late December 2019. “I already told them I was the driver, I said so from the beginning.”
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Speaking to Al Jazeera in north London, near his temporary hotel accommodation, he added: “They didn’t bring any evidence other than two pictures of me driving the boat and they said I had two SIM cards. This was given as evidence to prove I was a smuggler.”
But the laughter stopped very quickly when Kakaei, 31, was charged with assisting the unlawful entry of the other asylum seekers on board.
In January 2021, he was sentenced to 26 months in jail, a punishment including the offence of his own illegal entry, but he had already spent nearly a year in prison on remand.
His incarceration began as COVID-19 began to spread across the world.
“After the lockdown, it became a prison within a prison. I was in my cell 23.5 hours a day. There was nothing else to do, we just watched news about coronavirus all day and I started to wonder if I would ever see the outside world again.”
Kakaei would eventually emerge in May 2021 after being unanimously acquitted at a retrial following a successful appeal the previous month.
‘No choice but to leave’
Kakaei’s case comes as the United Kingdom’s Conservative Party government embarks on an overhaul of the “broken” asylum system that plans to deny asylum to people who enter the country through “illegal routes”.
The United Nations’ refugee agency, UNHCR, has warned that the measures “will undermine the 1951 Convention and international protection system, not just in the UK, but globally.”
An engineering student from western Iran, Kakaei’s membership of a persecuted minority prompted his sudden escape from the country in 2015.
“I faced execution. There was no choice but to leave.”
Kakaei initially settled in Denmark but after several years, his asylum request was unsuccessful, with authorities giving him mere days to leave the country.
Denmark has been condemned by rights groups for its “zero asylum seekers” policy which has seen the residency permits of Syrian refugees revoked and the parliament voting to send asylum seekers to external processing sites in Africa.
The Danish chapter took an emotional toll.
“I felt completely hopeless and gave up on life,” Kakaei admitted. “The only reason I didn’t do anything stupid was for my family’s sake.”
After hearing anecdotes of other Iranians denied by Denmark successfully claiming asylum in the UK, Kakaei travelled to France to find a clandestine route across the English Channel, the busiest shipping lane in the world.
Although the judge in Kakaei’s original trial accepted that he had a “well-founded fear of persecution”, he ruled that the passengers on his boat had entered without documentation and therefore Kakaei’s piloting of the boat – essentially holding the rudder – was also a crime.
Kakaei’s legal team successfully countered that the intention of those on board was to be rescued and taken to the UK for the purposes of seeking asylum.
The Court of Appeal deemed that the judge “deprived the appellant of a realistically viable defence” which explains why Kakaei originally pleaded guilty on all charges.
Kakaei’s lawyer, Aneurin Brewer of Red Lion Chambers, told Al Jazeera the offence of assisting “illegal immigration” is normally used to jail criminals who transport people into the country for profit.
“The irony and profound injustice of these cases is that the law that was enacted to protect people like Mr Kakaei has been used to prosecute him. It’s very troubling when the criminal justice system is used as an arm of politics.”
In March 2020, an independent report found that teams specialising in immigration-related criminal investigations for the Home Office, the government department responsible for immigration, said “small boats investigations were difficult because there were no organised crime group members onboard the boats” because “much of the organised criminal activity took place in France.”
A judge presiding over a similar case at Canterbury Crown Court in October 2020 found that the migrant at the helm of a small boat “is not in any realistic sense acting as part of a trafficking gang… He is one of the trafficked.”
Despite this, the government continues to prosecute asylum seeker pilots, with a Home Office spokesperson telling Al Jazeera that 65 small boat-related prosecutions had been achieved since the start of 2020, totalling more than 53 years in custodial sentences.
But recently, citing the issues highlighted in Kakaei’s case, the Crown Prosecution Service (CPS) sensationally announced that they would be dropping charges against 12 migrants being prosecuted for piloting small boats across the Channel.
A spokesperson told Al Jazeera that the cases “no longer meet our legal test for prosecution”.
‘A miscarriage of justice’
Brewer and other lawyers are now drawing up guidelines for legal teams to use in future cases, as well as review previous convictions to pursue appeals.
“A man is kept in prison for 17 months and is innocent: that’s a miscarriage of justice,” he told Al Jazeera.
Ellie Cumbo, head of public law at the Law Society, told Al Jazeera that the government’s use of smuggling laws is problematic.
“It entirely fails to distinguish those who are genuine asylum seekers, and hence victims, and those who are responsible for committing a crime.”
Cumbo says that the wider aim of the proposals – to invalidate asylum claims for those arriving irregularly – are unlikely to be compatible with international law.
“The Refugee Convention expressly recognises that there is no such thing as an illegal route to travel to the UK. The whole point is that people who are fleeing persecution may have to use irregular means to travel.”
Meanwhile, Kakaei still has to spend many months awaiting the resolution of his outstanding asylum claim.
Despite his treatment, he believes the government’s strategy is unlikely to serve the purpose of deterrence, given the circumstances most people are leaving behind.
“They will still come. As long as people are prepared to spend years in prison just to get out of their situation, there will always be people prepared to bring them to England.”