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An Iranian migrant has had his people smuggling conviction quashed – throwing doubt over past and future prosecutions.
Border Force discovered Fouad Kakaei manning a stricken rubber inflatable boat containing 27 people off the coast of Dover in July 2019.
During a police interview the 31-year-old admitted being one of many who piloted the dinghy.
He explained he wished to claim asylum for fear of persecution in Iran and was not part of a people smuggling conspiracy.
Mr Kakaei was deported to Denmark where he had an asylum claim, however in December the same year he was spotted in another RHIB with nine others bound for Kent.
He told Border Force he drove the vessel because only he could operate the faulty engine and he “didn’t want to die at sea”.
In January he was jailed for two years and two months at Canterbury Crown Court for what was the largest alleged UK people smuggling attempt by rubber boats to date.
But his lawyer Aneurin Brewer launched an appeal in the High Court, arguing Mr Kakaei entered his pleas on a faulty basis.
He asserted Mr Kakaei should not have been found guilty of breaking immigration laws because he was intending to be rescued at sea so he could apply for asylum at the Port of Dover.
Three top judges quashed his conviction earlier this year and a jury acquitted him of both counts of assisting unlawful immigration following a retrial on Thursday.
Mr Brewer argued the migrants on both occasions alerted the British authorities once they’d entered UK waters and were merely trying to seek asylum, rather than disappear into the ether.
Mr Kakaei didn’t receive money for piloting the vessel and, like other migrants on-board, paid people smugglers in France for the crossing, he added.
“This verdict throws into serious doubt the viability of future prosecutions."
The case could lead to other migrants currently serving jail sentences being freed, Mr Brewer told the Guardian.
“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,” he said.
Judge Simon James told the court: “The circumstances pertaining to these sorts of offences have been dramatically altered by the Court of Appeal’s decision in the case of Kakaei.
"Whereas previously it had been accepted that the individual, if he was piloting the boat, would likely be guilty, the Court of Appeal has made it clear that there may well be a defence if an individual is piloting the boat itself.
“It is acutely obvious the crown have not appreciated the potential defence, and many cases have been prepared without the issues which are obliged to be addressed in all similar cases, which is almost certainly going to require a review of evidence and the way the crown present their case. It is almost certainly going to require them to serve additional evidence.”
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