The UK government is facing a major legal challenge against its policy of prosecuting asylum seekers who steer boats across the Channel under smuggling laws. Since the start of 2020, Immigration Enforcement has brought 67 successful prosecutions related to piloting small boats. But after court challenges earlier in the year, the Crown Prosecution Service issued new guidance advising that passengers – even those who take a turn steering – are potentially vulnerable asylum seekers who should not be prosecuted. Despite this guidance prosecutions have continued. Lawyers for several individuals jailed on smuggling charges will put their cases at the court of appeal on Tuesday, arguing that they were attempting to be rescued at sea so they could claim asylum. Clare Moseley, the director of Care for Calais, who has given evidence for recent hearings, told the Observer that the people steering boats are not criminals making money out of the crossings. “In Calais people tell us that they have to take their phone so they can call the coastguard or Border Force from the boat; these people are happy to meet the authorities – their full intention is to claim asylum. “Some migrants drive the boat in order to get a place on it because they can’t afford to pay a smuggler. These people are victims of conflicts, torture and persecution, they are not criminals.” The appeals were triggered by a case in May when an Iranian man, Fouad Kakaei, had his smuggling conviction overturned at a retrial after spending 17 months in jail. He told UK authorities he had taken the tiller to stop the boat sinking. A Home Office spokesperson said at the time: “We are deeply disappointed by today’s verdict. The government is determined to crack down on the criminals who facilitate illegal entry into the UK and put lives at risk.” After Kakaei’s verdict was overturned, the Crown Prosecution Service issued its new guidance on Channel crossing prosecutions, stating: “Recognising migrants and asylum seekers often have no choice in how they travel and face exploitation by organised crime groups, prosecutors are… asked to consider the… public interest factors in charging those merely entering illegally… Passengers of boats and other vehicles should not be prosecuted unless they are repeat offenders or have previously been deported.” Despite the new guidance, prosecutions are still going ahead. Last week 36-year-old Hammad al-Shamari was jailed for two-and-a-half years for steering a boat with 25 people, including small children, across the Channel. He is a Kuwaiti Bidoon, a group persecuted by the government and often left stateless. The prosecutions are part of a wider pattern of governments across Europe using increasingly harsh laws against migrants and refugees. In Italy police have arrested more than 2,500 people for smuggling or aiding illegal immigration since 2013, often using anti-mafia laws to bring charges. Earlier this year Boris Johnson said that the government would “ruthlessly stiffen the sentences for anybody who is involved in this kind of people smuggling and trafficking human beings across the Channel”. The nationality and borders bill that is currently making its way through parliament could make it easier to prosecute people who are crossing the Channel as well as increasing the sentence to life for the offence of assisting unlawful immigration. Tom Pursglove, minister for justice and tackling illegal migration, said after the most recent case: “Small boat pilots put the lives of everyone in their boat in mortal danger and it is right that we deter further attempts by bringing them to justice. “Our new plan for immigration will help prevent these dangerous crossings by introducing tougher penalties for those who risk people’s lives by facilitating illegal immigration.”