Last Updated: 1 October 2024

For information about the Illegal Migration Act 2023, see our Legal Update blog here.

Entering the UK

The government makes it very difficult for people to enter the United Kingdom (UK) to claim asylum. This is especially so after the government introduced a law called the Nationality and Borders Act 2022. 

If you are in danger in your country of origin or residence, and you want the UK to grant you international protection, you can claim asylum when you are in the UK.

However, it is not possible to claim asylum from outside the UK, and there is no visa which allows people to enter the UK in order to claim asylum. This means that most people have no choice but to enter the UK without permission. People may come to the UK ‘clandestinely’ (for example, hidden in vehicles, on boats, or by aeroplane using a false passport).

Illegal entry

Under section 40 of the Nationality and Borders Act 2022 (NABA), it is difficult for a person to arrive in the UK without a visa. 

Because there is no such thing as an ‘asylum visa’, this law applies to almost all asylum seekers entering the UK. From 28 July 2022 onwards, anybody who enters the UK (without a visa) and claims asylum will be going against this law. This offence carries a maximum sentence of 4 years (5 years for people who re-enter the UK in breach of a deportation order). 

However, it is important to remember that it would not be practical for the government to prosecute (this means to bring criminal proceedings against) everybody who enters the UK without a visa, because this would put a lot of pressure on the courts and prison systems. 

The government has said that prosecutions will target people who are re-entering the UK after having been deported or removed as a failed asylum seeker. They also target people who have allegedly caused a danger to themselves or others, or have caused disruption to the channel tunnel or services such as shipping routes. 

A high profile case is that of Ibrahima Bah, a young man from Senegal, who was convicted of manslaughter and facilitating illegal entry to the UK because he was pictured with his ‘hand on the tiller’ of the dinghy he and over 40 other people crossed the Channel in. Tragically, at least four people drowned during the course of the journey. Though the judge determined that Bah was 20 at the time of sentencing, his birth certificate said he was 17. Ibrahima was sentenced to nine years and six months in detention for each count of manslaughter, and another four years in a young offender’s institution for the immigration offence.

A person who successfully applies for an unrelated visa (for example, a tourist visa) can enter the UK lawfully and claim asylum without breaching section 40 of NABA. 

However, it would be impossible to secure a tourist visa without being dishonest on the application form by stating that you intend to travel to the UK for a holiday, if your real intention would be to enter the UK to claim asylum. This could be seen as deception when applying for a visa. Deception is what happens when you hide or misrepresent the truth.

This means that it is now very difficult to safely and legally enter the UK to claim asylum. This goes directly against international law (which you can read more about below), and forms part of the ‘hostile environment’ which the UK government has created to make living in the UK without settled immigration status difficult.

The most important thing to remember is that, even though these laws are difficult, many people successfully claim asylum in the UK each year. In the year ending June 2024, 58% of initial Home Office decisions on applications resulted in the grant of refugee status or some other form of protection. This means that the UK Home Office – the government department responsible for immigration and borders – found people’s asylum claims legitimate even though they may have entered the UK through ‘irregular’ means. A legitimate claim is one that is genuine.

False passports

Many people who come to the UK to seek asylum will use their own passport. For some people, however, this is not possible. 

It is a criminal offence to knowingly enter the UK using a false passport. However, some people have no other option. This might be because they do not have a passport, and to ask for one would put them in danger. Or if they do have their own passport, using it from their home country might put them in danger.

Article 31 principle – immunity from penalty

Article 31 of the Refugee Convention recognises the possible danger of using a real passport in your own name when fleeing persecution in your country of origin. The Refugee Convention (a piece of international law that the UK signed) says that asylum seekers should not be punished if they have a good reason for using false passports. 

The “Article 31 principle” is written into Section 31 of the Immigration and Asylum Act 1999 which is a piece of UK law. Section 31 means that you may have a “not guilty” defence if you are charged with ‘document offences’ and can prove that you have:

• Come to the UK directly from a country where your life or freedom was threatened
• Presented yourself to the authorities without delay
• Showed good cause for your illegal entry or presence, and
• Made a claim for asylum as soon as was reasonably practicable after your arrival in the UK.

People prosecuted by the Government for the use of a false passport may not be aware of this defence. If you are represented by a lawyer who specialises in criminal law, and who does not know of this defence, the lawyer may wrongly advise you to plead guilty. This would be because they think the evidence of the crime is clearly there, and pleading guilty should lead to a shorter sentence. You should, however, be given advice about the Section 31 defence which could allow you to plead “not guilty”.

If you are in Scotland, you should ask your lawyer to look at the Crown Office’s prosecution guidelines, designed to protect refugees fleeing persecution.

If you are prosecuted for entering the UK using a false passport, the Criminal Cases Review Commission may be able to help you. Learn more in the section below.

If you are convicted (this means found to be guilty of the crime), you may serve a prison sentence. A criminal conviction for using a false passport may be used as a reason to refuse some immigration applications,  including indefinite leave to remain (ILR). It can also cause problems when applying for jobs.

Nationality and Borders Act limit to Article 31 relief

Section 37 of the new Nationality and Borders Act 2022 aims to limit access to the “Article 31 principle” defence for people who fall under the following categories:

• People who “stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country”,
• People who entered the UK as a refugee, if they failed to claim asylum “as soon as reasonably practicable after their arrival”,
• People who became refugees in the UK if they were initially in the UK lawfully, but claimed asylum once their presence became unlawful,
• People who were in the UK unlawfully, became refugees in the UK, but did not claim asylum as soon as reasonably practicable after they became aware of their need for protection under the Refugee Convention,
• People trying to leave the UK.

There is no Section 31 defence for entering the UK without a visa or applying for a visa by deception.

Criminal Cases Review Commission (CCRC)

There are things that may help you if you have been prosecuted for use of a false passport, even after a criminal sentence has been given. One of these is the Criminal Cases Review Commission (CCRC).

The CCRC was set up to deal with suspected miscarriages of justice. It has reviewed a number of convictions based on false documents offences against people seeking asylum and refugees. In most of these cases, the applicants were advised to plead guilty, and were not advised that they may have a defence. 

The CCRC has the power to refer convictions (and sentences) to the appropriate appeal court if it determines there is a real possibility that the conviction will be quashed (this means the conviction would be cancelled).

For more information about this process, contact the CCRC on 0300 456 2669 or send an email to info@ccrc.gov.uk. You can also fill out an application form on their website. The CCRC can deal with cases in England, Wales and Northern Ireland. For cases in Scotland, contact the Scottish CCRC on 0141 270 7030 or see their website for more information.

Claiming asylum

Once you make it to the UK, you claim asylum at the port of entry, or at the UK government department the Home Office.

To find out more about where and how you claim asylum read our Claiming Asylum page.