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Home » Legal Resources » Legal Guidance » H to K » Immigration

Immigration

Principle

There are two ways of dealing with illegal immigrants: 

  • administratively by the Immigration Authorities, i.e. UK Border Agency Officers; or 
  • by way of criminal proceedings.

In general, even if criminal proceedings cannot be taken, a person may remain administratively categorised as an illegal immigrant and still be subject to deportation or removed by the Home Office under section 3(5) or section 4(2) Immigration Act 1971 (the 1971 Act).

This chapter will provide guidance on the following criminal offences: 

  • Entering without leave (section 24(1)(a) of the 1971 Act); 
  • Obtaining leave by deception (section 24A (1) of the 1971 Act) as replaced and extended by (section 24A) inserted by reason of section 28 of the Immigration and Asylum Act 1999; 
  • Remaining beyond time limited by leave (section 24(1)(b)(i) of the 1971 Act); 
  • Failing to observe a condition of leave (section 24(1)(b)(ii) of the 1971 Act); 
  • Assisting unlawful immigration to a member state (section 25 of the 1971 Act); 
  • Facilitating entry by asylum seekers to the UK (section 25A of the 1971 Act); 
  • Assisting entry to the UK in breach of a deportation or exclusion order (section 25B(1) of the 1971 Act); 
  • Registration card offences (section 26A of the 1971 Act as introduced by section 148 of the Nationality, Immigration and Asylum Act 2002; 
  • Offences in connection with administration of the Act (section 26) as extended by section 30 of the Immigration and Asylum Act 1999; 
  • Possession of Immigration Stamps (section 26B of the 1971 Act as introduced by section 149 of the Nationality, Immigration and Asylum Act 2002; 
  • Employment of illegal immigrants (section 8 Asylum and Immigration Act 1996); 
  • Accession (Immigration and Worker Registration) Regulations 2004 
  • Not having a travel document at a leave or asylum interview (section 2 Asylum and Immigration (Treatment of Claimants etc) Act 2004); 
  • Non co-operation with request for information (section 35 (3) Asylum and Immigration (Treatment of Claimants etc) Act 2004); 
  • Trafficked victims.

Pre-charge advice

Section 7 of the Asylum and Immigration (Treatment of Claimants) Act 2004 amended section 3 (2) of the Prosecution of Offences Act 1985 and makes provision for the DPP to give advice to immigration officers on matters for which they have a power of arrest, prior to proceedings being instituted. For out-of-hours' advice, immigration officers will contact CPS Direct in all cases. However, in more complex ongoing investigations, immigration investigators have been advised that pre-charge advice should be obtained from duty prosecutors during daytime working hours and written advice endorsed on MG3 Forms.

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Joint Prosecutions

In cases where there is a joint investigation with the Police and UKBA, the police will normally lead the investigation. Meetings at an early stage of the investigation or case preparation are recommended to outline steps that should be taken to agree case progression. There may also be a need to agree joint/shared disclosure arrangements.

This does not inhibit prosecutors from requesting a case conference as part of the normal review process.

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Disclosure

As with any other area of crime, it is important that the issues of disclosure are resolved appropriately. Prosecutors and investigators should refer to the Disclosure Manual for details on issues around disclosure.

Public Interest Considerations

In cases where the offence is trivial and action has or will be taken by the immigration authorities, the public interest may not require a prosecution.

The fact that a defendant is to be administratively removed by the immigration authority does not, in itself, justify discontinuance.

When assessing the public interest criteria you will need to balance questions of delay, remands in custody and likely sentence against the gravity of the offence and any other compelling public interest consideration that may require a prosecution. It should be borne in mind that administrative removal may not prevent re-entry.

When it comes to the notice of the prosecutor that the suspect has committed an immigration offence whilst in a coerced situation and may be a victim of human trafficking, prosecutors are advised to make further enquiries of the investigating officer and or the UK Human Trafficking Centre and consider the public interest factors when considering whether to proceed with a prosecution. See guidance on Human Tafficking and Smuggling. 

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Time Limits

No time limits apply to the either-way offences stated above.

For summary offences, any summons or charge must ordinarily be laid within 6 months from the commission of the offence. However, section 28 of the 1971 Act provides for an extension of 3 years from the alleged commission of the offence within which proceedings may be brought for all offences under the Act, provided that within the extended period all information for a summary offence cannot be laid more than 2 months after the date certified by a Chief Officer of Police to be the date on which evidence sufficient to justify proceedings came to the notice of an officer of his force.

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Immigration Bail (jurisdiction of the courts)

Bail in criminal proceedings is an entirely different jurisdiction from bail in immigration proceedings and the fact that bail is granted or refused in one jurisdiction is not legally determinative of the other, although in practice it might be.

It is therefore imperative that when considering responding to applications for bail in criminal proceedings, that enquiries are made as to whether defendants are on immigration bail, particularly when there might be a substantive risk of them absconding during criminal proceedings.

In circumstances where someone is arrested for a criminal offence whilst on bail granted by an immigration judge and is subsequently dealt with by the Crown Court, the Crown Court Judge has no power to remand in custody for the immigration matter when criminal proceedings are concluded. There is no common law right for the Crown Court to exercise the authority of an immigration judge where there are breaches of immigration bail; that would amount to unlawful detention.

If bail is granted by the immigration judge, the Crown Court can still remand a defendant in custody (for a criminal offence); that does not operate to terminate the immigration bail, as the grant of bail in immigration proceedings is confined to those proceedings the remand in custody is for the criminal matter.

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Guidance by offence

Entering without Leave - section 24 Immigration Act 1971

This offence came into force on 1 January 1973.

The offence of entering without leave is committed only if no leave at all was granted. If leave was obtained by fraud then prosecutors should consider an offence of obtaining leave by deception under section 24(A) of the Immigration Act 1971 in addition to offences under the Forgery and Counterfeiting Act 1981.

This offence can only be committed by non-British citizens and requires proof that they knowingly entered the UK without leave of an immigration officer or in breach of a deportation order. The offence is committed on the day of entry only and is not a continuing offence.

The offence is a summary offence, the maximum sentence on conviction is 6 months' imprisonment or a maximum fine on level 4.

Obtaining Leave by Deception - section 24A (1) Immigration Act 1971

This offence came into force on 14 February 2000.

A person who is not a British Citizen commits this offence if by means which include deception by him:

a) he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or
b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him.

In proving deception, direct evidence from the immigration official who was deceived should ordinarily be obtained. Further information regarding this element can be found in the legal guidance dealing with the dishonesty offences under Section 15 of the Theft Act 1968. See guidance on Theft.

In drafting a charge or indictment under this section, it will be necessary to elect whether the allegation is made under section 24A (1) (a) or (b) of the 1971 Act.

There may also be an offence under section 26 (1)(c) of the 1971 Act [add link] of making a false statement, return or representation to an immigration official in the commission of any offence under Section 24 of the 1971 Act. The Section 26 offences are explained below.

The statutory defence under section 31 Immigration and Asylum Act 1999 applies to this offence.

This offence is an either-way offence and the maximum penalty on indictment is either a fine not exceeding the statutory maximum or imprisonment for a term not exceeding 2 years, or both.

The leading authority for sentencing is R v Nasir Ali [2002] 2 Cr. App. R. [add link] This case indicates that even where a guilty plea is entered, a sentence of 9 to 12 months imprisonment should be imposed. In terms of venue, these offences should ordinarily be dealt with in the Crown Court unless there is exceptional mitigation.

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Remaining beyond time limited by Leave (overstaying) - section 24(1)(b)(i) Immigration Act 1971

Remaining beyond time limited by leave contrary to section 24(1) (b)(i)) Immigration Act 1971 (overstaying) requires proof of limited leave, expiry date and proof of knowledge of remaining beyond that date. This offence came into force on 1 January 1973.

In proving this offence, admissions and or evidence from an Immigration Officer will be required. The Immigration Officer who admitted the defendant should provide material facts. This will include the explanation to the defendant of the limits of leave and the fact that a notice in writing under section 4 was given (usually a passport stamp). Note: A defective passport stamp is insufficient to satisfy the requirements of a notice in writing.

An offence under section 24(1)(b)(i) is a continuing offence by virtue of section 24(1A) of the 1971 Act. An offender may only be prosecuted once in respect of the same limited leave. The offence should be charged as being committed on the day when the defendant first knew that the time limited by the leave had expired or alternatively as an offence continuing over a specified period.

If a defendant applies to the Secretary of State within the period of leave for an extension then, when the original leave expires, the period of leave is deemed to continue by virtue of section 3c of the 1971 Act as introduced by section 3 Immigration and Asylum Act 1999.

If the Secretary of State extends leave, a letter will normally be sent to the defendant stating the new limit. This provides the requisite notice in writing and its admissibility is governed by section 32(2) of the 1971 Act.

This offence is a summary only offence and the maximum sentence is a fine or up to 6 months' imprisonment.

Treaty of Rome - Special Rules

Note that Special Rules apply to citizens enjoying the protection of the Treaty of Rome. [add link] Failure to obtain the special residence permit required by Article 3(2) of Council Directive 68/260/EEC cannot be punished by deportation or imprisonment.

Proof of knowledge will be a key factor in a prosecution under section 24(1)(b)(i) Immigration Act 1971. The evidence should be reviewed carefully to ensure that there is either direct or circumstantial evidence that the defendant deliberately overstayed.

The fact that a defendant forgot the date does not provide a defence (R v Bello [1978] Crim L.R. 551). [add link] Deliberate failure to find out whether the leave expired on a certain date accompanied by a suspicion of expiry should be sufficient for a prosecution.

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Failing to observe a Condition of Leave - section 24(1)(b)(ii) Immigration Act 1971

This offence came into force on 1 January 1973.

As with the offence of overstaying, this offence is committed and continues to be committed where there is proof that a specific condition on which leave was granted has been broken. Prosecutors will need to prove notice in writing (e.g. Passport stamp; Home Office notice) and guilty knowledge. The evidence of the immigration official imposing the condition, written evidence of the defendants knowledge and proof of how the condition was broken will be required.

Conditions normally imposed include:

  • Not to take up paid employment; 
  • Residence; and 
  • Not to have recourse to public funds (consider also further charges for dishonesty offences).

Care should be exercised in circumstances where leave has been extended. Evidence must be adduced that the condition continued to apply on the date of the offence. If the leave expires, either through lack of, or late, application then so do the conditions. Any breach of them merges into the offence of overstaying (Singh (Gurdev) v R [1974] 1 All ER 26). 

Where the Police discover a defendant in employment in breach of a condition of leave, consideration should be given to whether evidence will support an offence of aiding and abetting against the employer, provided it can be established that the employer was aware of the condition and/or an offence under section 8 Asylum and Immigration Act 1996 (see below).

Sections 24(1)(c) to (g) create offences of failing to comply with miscellaneous requirements. Prosecutors should examine failures by the defendant to see if any of these less common offences are more appropriate.

These offences are summary only. The maximum sentence is a fine at level 5 or 6 months imprisonment, or both.

Assisting Unlawful Immigration to a Member State (facilitation) - section 25 Immigration Act 1971

Section 25 Immigration Act 1971 creates an offence of assisting unlawful immigration (known as facilitation). The offence was substituted by section 143 Nationality, Immigration and Asylum Act 2002 which came into force on 10 February 2003. This widened and extended the old facilitation provisions and covers any act facilitating a breach of immigration law by a non-EU citizen (including a breach of another Member State's immigration law) and acts covered by the old offence of "harbouring".

Under section 25(1) a person commits an offence if he:

a) does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union;
b) knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and
c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

The offence is defined broadly enough to encompass both the old offences of assisting illegal entry (whether by smuggling someone in a vehicle or by providing false documents for presentation at a port) or assisting someone to remain by deception (for example by entering into a sham marriage) and other forms of assistance which facilitate a breach of the immigration laws.

Section 25(5) of the Act was replaced by section 30(1) of the UK Borders Act 2007 which came into force on 31 January 2008. This now covers acts committed in the United Kingdom, regardless of the nationality of the perpetrator as well as acts committed overseas.

The offence is an either-way offence and the maximum sentence on indictment is 14 years' imprisonment. It is also a "lifestyle offence" under schedule 2 of the Proceeds of Crime Act 2002.

In R v Naillie and Another [1993] 1 All ER 75, [1992] 1 WLR 1099, [1992] the defendants were convicted of facilitating entry into the UK contrary to section 25(1) of the Immigration Act 1971 by making arrangements for people travelling to the UK using false passports. The defendants appealed on the ground that it had not been shown that when the people arrived in the UK, claiming asylum, they were illegal entrants. The appeals were allowed. It was held that:

  • Under the 1971 Act entry was not to be equated with disembarkation. Those who disembarked without a right of entry were not automatically illegal entrants;
  • An asylum seeker who claimed asylum while still within the designated area was not an illegal entrant, albeit he might have forged documents or no documents at all;
  • On the facts, none of those whose arrival in the United Kingdom was assisted by the defendants, was an illegal entrant.

The leading sentencing guide case is R v Le and Stark [1999] 1 Cr. App. R. (S.) 422. This states that the most appropriate penalty for all but the most minor offences of this nature is custody. Aggravating features include repeat offending; commission for financial gain; involvement of strangers rather than family members; a high degree of planning/sophistication; the number of immigrants involved; and the level of involvement of the offender. For guidance on non-commercial facilitation, see R v Panesar [1988] Cr. App. R.(S.) 457. In the case of commercial facilitation see R v Brown [1997] 1 Cr. App. R.(S.) 112, R v Woop [2002] 2 Cr. App. R.(S.) 65 and R v Akrout [2003] EWCA Crim 291. 

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Facilitating entry by asylum seekers to the UK for gain - section 25A Immigration Act 1971

This offence was substituted by section 143 of the Nationality, Immigration and Asylum Act 2002 and came into force on 10 February 2003. Section 29 of the UK Borders Act 2007 inserted "or the entry into" the UK under section 25A(1)(a).

Under section 25A(1) Immigration Act 1971 a person commits an offence if he:

a) knowingly and for gain facilitates the arrival in or the entry into the United Kingdom of an individual, and
b) knows or has reasonable cause to believe that the individual is an asylum-seeker.

Under section 25A(2) Immigration Act 1971 an "asylum seeker" means a person who intends to claim that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under the Refugee Convention (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (interpretation)), or the Human Rights Convention (within the meaning given by that section).

The offence covers any actions done whether inside or outside the United Kingdom, 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. The offence is aimed at those who, for gain, bring asylum seekers to the UK to enable them to claim asylum. This does not apply to anything done by a person acting on behalf of an organisation, which aims to assist asylum seekers, and does not charge for its services: section 25A(3) Immigration Act 1971.

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.

Bearing in mind the nature of the offences and the likely sentence to be imposed, the majority of cases will not be suitable for summary trial unless there are significant and exceptional circumstances to justify this course of action. The factors in R v Le and Stark [1999] 1 Cr. App. R. (S.) 422 would appear to apply here equally.

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Assisting entry to the UK in breach of deportation or exclusion order - section 25B(1) Immigration Act 1971

This offence was substituted by section 143 of the Nationality, Immigration and Asylum Act 2002 and came into force on 10 February 2003.

Under section 25(B)(1) Immigration Act 1971 a person commits an offence if he:

a) does an act which facilitates a breach of a deportation order in force against an individual who is a citizen of the European Union, and
b) knows or has reasonable cause for believing that the act facilitates a breach of the deportation order.

In cases where the Secretary of State personally directs that the exclusion from the United Kingdom of an individual who is a citizen of the European Union is conducive to the public good, subsection (3) below applies.

Under Section 25(B)(3) Immigration Act 1971 [add link] a person commits an offence if he:

a) does an act which assists the individual to arrive in, enter or remain in the United Kingdom;
b) knows or has reasonable cause for believing that the act assists the individual to arrive in, enter or remain in the United Kingdom; and
c) knows or has reasonable cause for believing that the Secretary of State has personally directed that the individuals exclusion from the United Kingdom is conducive to the public good.

The offences cover any actions done whether inside or outside the United Kingdom (amended by section 30 UK Borders Act 2007).

It 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.

Bearing in mind the nature of the offences and the sentences that can be imposed, it is likely that many cases will not be suitable for summary trial unless there are significant and exceptional circumstances to justify this course of action. The factors in R v Le and Stark [1999] 1 Cr. App. R.(S.) 422 would appear to apply equally here.

Under section 25C Immigration Act 1971, where a person is convicted on indictment of an offence under sections 25, 25A or 25B, the court may order the forfeiture of a vehicle, ship or aircraft used or intended to be used in connection with the offence if the convicted person owned, was in possession of or was driving it at the time.

Under section 25D Immigration Act 1971, if a person has been arrested for an offence under sections 25, 25A or 25B, a senior officer or a constable may detain a relevant ship, aircraft or vehicle.

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Offences in connection with administration of the Immigration Acts

Section 26(1) Immigration Act 1971. 

This offence came into force on 1 January 1973. An offence is committed under Section 26(1) of the Immigration Act 1971 in any of the following situations:

a) if without reasonable excuse, he refuses or fails to submit to examination under Schedule 2 to this Act;
b) if, without reasonable excuse, he refuses or fails to furnish or produce any information in his possession, or any documents in his possession or control, which he is on an examination under that Schedule required to furnish or produce;
c) if on any such examination or otherwise he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of [a relevant enactment] a return, statement or representation which he knows to be false or does not believe to be true;
d) if, without lawful authority, he alters any [certificate of entitlement], entry clearance, work permit or other document issued or made under or for the purposes of this Act, or uses for the purposes of this Act, or has in his possession for such use, any passport, [certificate of entitlement], entry clearance, work permit or other document which he knows or has reasonable cause to believe to be false;
e) if, without reasonable excuse, he fails to complete and produce a landing or embarkation card in accordance with any order under Schedule 2 to this Act;
f) if, without reasonable excuse, he fails to comply with any requirement or regulations under section 4(3) or of an order under section 4(4) above;
g) if, without reasonable excuse, he obstructs an immigration officer or other person lawfully acting in the execution of this Act.

Section 30(3) of the Immigration and Asylum Act 1999 extended section 26 of the 1971 Act to cover future statements or representations made to a person lawfully acting in the execution of other immigration legislation subsequent to the Act namely:

  • The Immigration Act 1988 
  • The Asylum and Immigration Act 1993 (excluding Part VI).

Most commonly encountered is an offence contrary to section 26(1)(c) which relates to the making of a false statement to an Immigration Officer or other person lawfully acting under the Act. The "other person" may include a police officer but not when the officer is investigating a suspected offence under the Act. The relevant falsehood has to be addressed to a person in the course of a specific procedure under the Act whereby that persons statutory function involved the obtaining or receipt of information relevant to the performance of that function: (see R v Clarke (Ediakpo) [1985] 2 All ER 777).

To prove section 26(1)(c) there must be a statement of representation made. A simple failure to inform the Immigration Officer of material facts would not amount to an offence, since there is no duty of candour placed on the defendant. However, conduct and silence as to material facts may amount to a representation.

The legislation is silent as to what amounts to a reasonable excuse. This will ultimately be a matter of fact for the courts to decide in the particular circumstances of each case. Evidence to contradict any claims of reasonable excuse should be obtained where possible. Late claims of reasonable excuse could be discredited if it was not mentioned at an earlier opportunity.

The extended time limit for prosecutions provided for by section 28 below apply to offences under subsection (c) and (d) above. The defence in section 31 of the Asylum and Immigration Act 1999 (refugee status) applies to section 26(1)(d).

These offences are summary only offences punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both.

Statutory Defence - section 31 of the Immigration and Asylum Act 1999

Section 31 of the Immigration and Asylum Act 1999 creates a statutory defence to the offences listed in subsection (3). It is based on the wording of Article 31 of the 1951 UN Convention Relating to the Status of Refugees (the Refugee Convention). In England, Wales and Northern Ireland the offences to which this section applies are any offence, or any attempt to commit an offence, under: 

  • Part 1 of the Forgery and Counterfeiting Act 1981 (forgery and connected offences); 
  • Section 24A of the 1971 Act (deception); 
  • Section 26(1)(a) of the 1971 Act (falsification of documents). 
  • Sections 25(1) and (5) of the Identity Cards Act 2006 (possession of false identity documents) (in force until 21 January 2011)
  • Sections 4(1) and 6(1) of the Identity Documents Act 2010 (possession of false identity documents), which replace sections 25(1) and (5) of the Identity Cards Act 2006 with effect from 21 January 2011.

It is a defence for a refugee to show that he has come directly from a country where his life or freedom were threatened (within the meaning of the Refugee Convention); presented himself to UK authorities without delay; showed good cause for entry or presence and made a claim for asylum as soon as practicable.

Section 31(8) of the Immigration and Asylum Act 1999 makes this statutory defence retrospective in its application.

The scope of the statutory defence and Article 31 of the UN Convention on Refugees 1951 was initially considered in the case of R (on the application of Gjovalin Pepushi) v CPS [2004]. This case reaffirmed the position as stated in R (on the application of Hussain) v The Secretary of State for the Home Department and Others (Hussain) (26 June 2001), namely that the Refugee Convention is not and never has been part of domestic law, save that in this particular respect Parliament has now enacted section 31. Nevertheless, the court and the CPS, in deciding whether to continue the prosecution, is necessarily obliged to have regard to the terms of the statute as laying down authoritatively the nature of the United Kingdoms obligations under article 31.

It remains the case that the CPS is reliant upon the UK Border Agency for information and evidence relevant to an assessment of whether a defence under section 31 may apply. This should include information about the current status of any application for asylum. However, the fact that a defendants application for asylum remains undetermined should not of itself prevent or delay prosecution or conviction.

Where a suspects refugee status remains to be determined by the Secretary of State or is the subject of an appeal to the Immigration Appellate Authority, yet the suspect has complied with all the conditions set out in sub-sections 31(1) and (2), it would normally be appropriate to await the outcome of the asylum proceedings before commencing a prosecution.

In the case of R v Asfaw [2008] UKHL 31 the House of Lords further indicated:

a) Section 31 of the Immigration and Asylum Act 1999 should not be read as limited to offences attributable to the refugees illegal entry into or presence in the UK, but should be interpreted in such a manner as to fully reflect the scope and intention of Article 31 for the purposes of domestic law. The statutory defence provided by section 31 should therefore be available for offences attributable to a refugees attempt to leave the UK in the continuing course of a flight from persecution, even after a short stopover in transit;
b) The offence of attempting to obtain services by deception, although within Article 31, was not listed in section 31. This must be regarded as an oversight, not a deliberate omission. If such a count was included in the indictment to prevent a defendant from relying on the defence which section 31 would otherwise provide, there would be strong grounds for arguing that that was an abuse of process;
c) The term coming directly is to be interpreted in such a way that it does not impose an obligation solely on countries adjacent to countries of persecution. In practice the provisions of Article 31 are given a liberal interpretation, so that a person may actually travel through several countries until he eventually applies for asylum and recognition as a refugee in a country more or less of his choice, and may still get the benefit of those provisions [factors such as family reunification are recognised as relevant to the exercise of that "choice" as well as the necessary reliance on arrangements made by third party agents, in which a refugee may have little or no choice]. The implication is that if the refugee ends his journey in any of the transit countries, he would be able to invoke Article 31 (1) there, too.

The decision is of considerable significance, given that it broadens the scope of the availability of the statutory defence beyond those limits previously set out in R v Pepushi.

The section 31 defence was further considered in the case of R v MMH (2008) EWCA Crim 3117. The Court of Appeal stated that in deciding whether a claim for asylum was made "as soon as reasonably practicable after ... arrival in the UK", regard should be had for the age of the applicant (who was aged 16 in the case of MMH) and the "very strange and doubtless intimidating circumstances in the interview that he had at midday on 5 April with the immigration officials". The Appeal was allowed in this case.

The conjoined cases of Mohamed, Mohamed, MV and Nofallah (2010) EWCA Crim 2400, whilst having no connection with each other, appealed on the basis that each had pleaded guilty and was sentenced to imprisonment but were wrongly advised as to the law and could have mounted a defence relying on section 31. The appeals were allowed in each of the cases on the grounds that a failure to advise on the scope of potential defences can render the plea unsafe.

However, in the case of Sternaj and Sternaj (2011) EWHC 1094 (Admin), the appellants sought to rely on section 31 defence to a charge of facilitation under section 25 Immigration Act 1971 of a person who was a bona fide asylum seeker, a young child related to both appellants. It was held that they were not entitled to rely on the protection afforded by this defence.

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Registration Card Offences - section 26A Immigration Act 1971

This offence came into force on 10 February 2003 and was substituted by section 148 Nationality, Immigration and Asylum Act 2002.

This section creates a number of offences relating to the creation, possession and use of false or altered registration cards.

A registration card is defined in section 26A 1) and (2) of the Immigration Act 1971 as a document which carries information about a person and is issued by the Secretary of State in connection with a claim for asylum or a claim for support under section 4 of the Immigration and Asylum Act 1999. The Secretary of State may change the definition by order.

Under Section 26A(3) of the Immigration Act 1971 a person commits an offence if he:

a) Makes a false registration card;
b) Alters a registration card with intent to deceive or to enable another to deceive;
c) Has a false or altered registration card in his possession without reasonable excuse;
d) Uses or attempts to use a false registration card for a purpose for which such a card is issued;
e) Uses or attempts to use an altered registration card with intent to deceive;
f)  Makes an article designed to be used in making a false registration card;
g) Makes an article designed to be used in altering a registration card with intent to deceive or to enable another to deceive;or
h) Has an article as described in (f) or (g) above in his possession without reasonable excuse.

All these offences are either-way. Offences under sections 26A(c) and (h) of the Immigration Act 1971 carry a maximum sentence of 2 years' imprisonment on indictment whilst the remaining offences have a maximum sentence of 10 years' maximum imprisonment on indictment.

Bearing in mind the nature of the offences and the sentences that are likely to be imposed, it is likely that most such cases will not be suitable for summary trial unless there are exceptional circumstances to justify this course of action.

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Possession of Immigration Stamps or replica Immigration Stamps - sections 26B(1) and (2) Immigration Act 1971

These two offences came into force on 10 February 2003 and were substituted by section 149 Nationality, Immigration and Asylum Act 2002. 

Under section 26(B) (1) a person commits an offence if he has an immigration stamp in his possession without reasonable excuse. Under section 26(B)(2) a person commits an offence if he has a replica immigration stamp in his possession without reasonable excuse.

Under section 26B(3) an:

a) "Immigration stamp" means a device which is designed for the purpose of stamping documents in the exercise of an immigration function;
b) "Replica immigration stamp" means a device which is designed for the purpose of stamping a document so that it appears to have been stamped in the exercise of an immigration function;
c) "Immigration function" means a function of an immigration officer or the Secretary of State under the Immigration Acts.

These offences are either-way offences. The maximum sentence on indictment is 2 years' imprisonment and or a fine not exceeding the statutory maximum.

In these cases venue will need to be decided on a case to case basis depending on the facts presented. It is likely that where any element of organisation or financial gain is involved will make a case more suitable for trial on indictment rather than being dealt with summarily.

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Employment of Illegal Immigrants - section 8 Asylum and Immigration Act 1996

This offence came into force on 1 December 1997.

On 29 February 2008, SI 310 of 2008 brought in new provisions under the Immigration, Asylum and Nationality Act 2006 (IANA) and, of note, removed criminal penalties that had applied under section 8 of the Asylum and Immigration Act 1996 for employers who did not take care to check their employees immigration status.

Instead section 15 of IANA 2006 created a new civil penalty regime for employers.

In addition section 21 of IANA 2006 creates a new offence of knowingly employing adults subject to immigration control.

An employer can now face three potential sanctions:

1. Civil penalties under section 15 of the IANA 2006. This is the starting point for consideration and according to the UK Border Agency (UKBA) should be used for all routine non-compliance with the law. The procedure is that a Notification of Potential Liability (NOPL) is served in all instances where an immigration offender working illegally is encountered or arrested. That is then copied to the Civil Penalties Department in UKBA which is responsible for deciding whether to issue the formal penalty notice.

UKBA will take account of:

  • Whether full or partial document checks have been completed by the employer; 
  • Whether any previous penalties or warnings have been issued to the employer within the previous three years, and if there has been any subsequent improvement in their procedures; 
  • Whether the employer has adhered to the Civil Penalty Code of practice; 
  • If the employer has reported any suspected illegal workers and can provide evidence of doing so before the visit by investigating officers (if the employer contacts the Employers Helpline to report their suspicions, they will be provided with a unique reference number (URN) and this can be used to verify the employers claim); 
  • If the employer has not obstructed the UKBA in conducting any operation to apprehend any illegal workers in question; 
  •  Whether the migrant worker is living and working in the UK illegally; or 
  • Whether the migrant worker is legally resident in the UK, but has been found to be working in breach of their employment restrictions; and 
  • The thoroughness and / or consistency of the employers existing employment processes.

In some cases that Civil Penalties Department may decide to refer cases for possible criminal proceedings.

2. Criminal proceedings under section 21 IANA 2006, will be appropriate in cases where a civil penalty procedure is considered inadequate. That is cases where it is obvious that the employer has deliberately and knowingly breached the law.

An offence is committed where any person ("the employer") employs a person knowing that the employee is an adult subject to immigration control and that:

a) the employee has not been granted leave to enter or remain in the United Kingdom; or
b) the employee's leave to enter or remain in the United Kingdom

i. is not valid,
ii. or ceased to have effect; (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise) or
iii. is subject to a condition preventing the employee from accepting the employment.

A person guilty of an offence under this section shall be liable:

a) on conviction on indictment, to a fine, and or to imprisonment not exceeding 2 years
b) on summary conviction, to a fine not exceeding the statutory maximum

3. Criminal proceedings under section 25 of the Immigration Act 1971 (facilitation of unlawful immigration to a member State), as amended, carrying a maximum penalty of 14 years' imprisonment.

Only in serious cases involving organised criminal activity to evade immigration rules should the third option be considered where the acts relied upon amount to no more than employing adults subject to immigration control.

Note that section 21 IANA, the less serious offence, requires proof of knowledge, while for the more serious offences what is required is that the defendant "knows or has reasonable cause to believe". The lesser evidential requirement is not a factor that would justify prosecutions for the more serious offence in minor cases, for which Parliament has created a specific regime.

In every case part of the Code review process should include considering the reasons for the authorities not adopting the penalty notice procedure. If there is no clear decision-making process on papers submitted by the police/ UKBA this should be questioned. Recorded reasons will make cases less susceptible to abuse of process arguments or judicial review.

Accession (Immigration and Worker Authorisation) Regulations 2006

These offences came into force on 1 January 2007 and the regulations make provision in relation to the entitlement of nationals in Bulgaria or Romania (A2 nationals) to reside and work in the United Kingdom.

  • Regulation 12 creates an offence for an employer to employ a Bulgarian or Romanian national that does not hold an accession worker authorisation document or one who is undertaking work that is not specified in the document. This is a summary only offence with a maximum fine not exceeding level 5 on the standard scale;
  • Regulation 13 creates an offence for an A2 national to work if they do not hold an accession worker authorisation document or he is working in breach of the conditions as set out in the accession worker authorisation document. This is a summary only offence with a fine not exceeding level 5 or imprisonment for not more than 3 months;
  • Regulation 14 creates an offence if, an employee by means which include deception by him, he obtains or seeks to obtain an accession worker card. This is a summary only offence with a fine not exceeding level 5 on the standard scale or imprisonment for not more than 3 months, or both.

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Not having a Travel Document at a Leave or Asylum Interview - section 2 Asylum and Immigration (Treatment of Claimants etc) Act 2004

This offence came into force on 22 September 2004.

Section 2 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (the 2004 Act) creates an offence of a person not having an immigration document for himself or any dependant children, at a leave or asylum interview on entering the United Kingdom. The offence is intended to discourage persons from destroying or disposing of their immigration documents en route to the United Kingdom, particularly where doing so in order to conceal their identity, age or nationality in an attempt to increase the chances of success of a claim or application or to make consideration of their claim or application more difficult and/or to thwart removal.

Section 2(1) of the Act states:

"A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which -
a) is in force, and
b) satisfactorily establishes his identity and nationality or citizenship"

An "immigration document" is defined by section 2(12) of the Act as a passport, or a document which relates to a national of a State other than the United Kingdom and which is designed to serve the same purpose as a passport.

A "leave or asylum interview" is defined by section 2(12) of the Act as an interview with an immigration officer or an official of the Secretary of State at which a person:

a) seeks leave to enter or remain in the United Kingdom, or
b) claims that to remove him from or require him to leave the United Kingdom would breach the United Kingdoms obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 (c.42) as being incompatible with his Convention rights.

It is not the intention of the offence to penalise those who never had an immigration document during the course of their journey to the United Kingdom, or those who use a false immigration document (e.g. a false passport) to travel to the United Kingdom and who produce that document on arrival.

Section 2(3) of the Act states that:

No offence is committed where:

  • the interview takes place after the person has entered the United Kingdom (in-country applications), and 
  • within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that subsection.

Statutory defences to the offences in the Act

The Act also provides statutory defences to the offences in the Act.

Sections 2(4) and 2(5) of the Act state the main defences to the section 2 (1) and 2(2) offences. These defences are that the person charged (or the child):

a) is an European Economic Area (EEA) national;
b) is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom;
c) has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1);
d) produces a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his (or the childs) journey to the United Kingdom; or
e) travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document.

The term reasonable excuse is not defined under the Act. This will ultimately be a matter for courts to decide. However certain factors are specifically excluded from amounting to a reasonable excuse under section 2(7) of the Act which states:

For the purposes of subsections (4) to (6):

a) the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was -

i. for a reasonable cause, or
ii. beyond the control of the person charged with the offence, and
b) in paragraph (a)(i) "reasonable cause" does not include the purpose of -
iv. delaying the handling or resolution of a claim or application or the taking of a decision,
v. increasing the chances of success of a claim or application, or
vi. complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice.

In Soe Thet v Director of Public Prosecutions [2006] EWCH 2701 (Admin) [add link] the appellant asserted that he had never been in possession of a genuine travel document and relied on section 2(4)(c), on the basis that he cannot commit an offence if he could provide a reasonable excuse for not being in possession of a genuine passport in the first place. The defendant must satisfy the tribunal as to where he is from. The defences arising under sections 2(4)(c) and 2(6)(b) referred to genuine documents only.

The position was further clarified in Mohammed and Osman [2007] EWCA Crim 2332. If the applicant states that he has travelled on a genuine travel document but does not have reasonable excuse for not providing it at interview, he will be caught by the Act. In the case of Mohammed she was unable to obtain a genuine travel document because of lack of issuing facilities. Neither could she produce false travel documents as they were removed by an agent.

The following excuses might be considered reasonable following the effects of the decisions in Thet and Mohammed and Osman.

The applicant who states he has travelled on a genuine document: 

  • unable to obtain a genuine travel document because of the political situation in the country of origin (as in Thet); 
  • unable to obtain a genuine travel document because of lack of issuing facilities (as in Mohammed, who did not know where to go for a genuine passport - the CA indicated that this could amount to a defence); 
  • genuine travel document stolen en route, or in the UK, through no fault of the applicant; 
  • genuine travel document destroyed en route, or in the UK, through no fault of the applicant.

The applicant who states he has travelled on a false document: 

  • able to produce that false document and prove he has used it to enter the UK; 
  • can establish a reasonable excuse for not being in possession of a genuine passport (i.e. the Thet reason referred to above).

The applicant who says he never had any documents: 

  • must show that at no stage in his journey to the UK, did he have any travel documents at all (e.g. if he can prove that he was smuggled for the entire journey in a lorry).

Section 2(8) of the Act creates a statutory presumption that a person does not have a document with him if he fails to produce it to an immigration officer or official of the Secretary of State on request.

The available defences therefore (following the cases referred to above) can be summarised as follows: 

  • Defence 1 - section 2(4)(c): does the applicant have a reasonable excuse for not being in possession of a genuine document? If yes, he has a defence, even if he travelled on false documents; 
  • Defence 2 - section 2(4)(d): if he travelled on false documents can he produce them? If yes, he has a defence; 
  • Defence 3 - section 2(4)(e): can he prove that at no stage did he travel to the UK without documents at all (either genuine or false)? If yes, he will have a defence.

The offences under sections 2(1) and 2(2) of the 2004 Act are either way offences and carry a maximum penalty of two years' imprisonment on indictment or a fine, or both.

The length of imprisonment for a guilty plea with no aggravating features has ranged from 2 to 10 months. Mode of trial representations will depend upon a careful evaluation of all the circumstances in the case. However, the starting point is likely to be that a case is borderline unsuitable for summary trial as that is consistent with the approach where a prosecution for persons who produce forged documents - see R v Kolawole (2004) Although ultimately a matter for the courts, it would be inconsistent for lesser sentences to be imposed for not having a travel document as opposed to having a forged document, as this would create an incentive rather than a deterrent effect to this offence. In such a situation an offender who travels on forged documents would be in a better position if he destroyed those documents as opposed to actually producing them. However, see also R v Chang [2005] for guidance in situations where a youth is involved.

If human rights issues are raised, the decision in R v Pepushi [2004] may be of some assistance. Further guidance can be found in the Legal Guidance on Human Rights and Criminal Prosecutions: General Principles.

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Non co-operation with a Request for Information - section 35(3) Asylum and Immigration (Treatment of Claimants etc) Act 2004

Section 35 creates an offence of failing to comply, without reasonable excuse, with actions that the Secretary of State may require someone to take so as to enable a travel document which will facilitate the persons deportation or removal from the United Kingdom to be obtained by that person or on his behalf.

The offence came into force on 22 September 2004.

This provision was intended to prevent people, who have exhausted all avenues of appeal following a failed asylum claim, to avoid deportation by refusing to sign the necessary documentation that is required before that person can leave the UK.

Under section 35(1), the Secretary of State may require a person to take a specified action if the Secretary of State thinks that:

a) the action will or may enable a travel document to be obtained by or for the person; and
b) possession of the travel document will facilitate the person's deportation or removal from the United Kingdom.

Section 35(2) defines the specified action that may be required by the Secretary of State: 

  • provide information or documents to the Secretary of State or to any other person; 
  • obtain information or documents; 
  • provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information, about external physical characteristics (including, in particular, features of the iris or any other part of the eye); 
  • make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom; 
  • co-operate with a process designed to enable determination of an application; 
  • complete a form accurately and completely; 
  • attend an interview and answer questions accurately and completely; and 
  • make an appointment.

Under section 35(3), a person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under section 35(1).

Reasonable Excuse

The legislation is silent as to what constitutes 'reasonable excuse. In the case of R v Masoud Tabnak [2007] EWCA Crim 380 the Court of Appeal (Criminal Division) [add link] found that a failure to co-operate based on a fear of persecution or serious harm under the Refugee Convention and Article 3 of the Human Rights Convention, could not amount to a 'reasonable excuse for not complying with the requirement imposed under section 35(1) of the Act. The Court confirmed the decision of the trial judge that "to allow fear of persecution to amount to a reasonable excuse would frustrate the intended aims and objectives of Parliament." The provision is concerned solely with an inability to comply with the practical requirements defined in section 35(2).

Where the fear of persecution or serious harm is a defence which has already been considered by the Asylum and Immigration Tribunal, a specialist Tribunal which is best placed to consider whether the defendants claim for asylum is genuine or not. Such a ruling is conclusive that a person is not a refugee and precludes a defendant from adducing evidence to raise the question of refugee status in criminal proceedings. If a defendant were allowed to raise fear of persecution as a defence at the Crown Court, it would, in effect, be placing the judge and jury in an appellate function over experienced professionals.

Examples of what might constitute reasonable excuse include the failure to attend an interview because of a medical appointment or difficulties with transport, or needing time for further information.

Burden of Proof

Any claim which is raised as a 'reasonable excuse must be substantiated. The burden of proof is an evidential one on the defendant; that is, the defendant will need to raise evidence of his cause. Once the defence of 'reasonable excuse is raised, the burden of disproving it is on the Prosecution to the criminal standard.

The offence is an either-way offence.

A person guilty of an offence under section 35(3) shall be liable:

c) on conviction on indictment, to imprisonment for a term not exceeding 2 years, to a fine or to both, or
d) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine not exceeding the statutory maximum or to both.

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Prosecution of Defendants Charged with Immigration Offences who might be Trafficked Victims

The UK is bound by the Council of Europe Treaty ratified by the government on 17 December 2008 and which places specific and positive obligations upon EU States to prevent and combat trafficking and protect the rights of victims. It provides for the possibility of not imposing penalties on victims for their involvement in unlawful activities to the extent that they have been compelled to do so.

Adults and children arrested by the police and charged with committing criminal offences might be the victims of trafficking. This most frequently arises when they have been trafficked here to commit criminal offences. But trafficked victims may also be apprehended by law enforcement where they are escaping from their trafficking situation, the most obvious being immigration offences:

  • using a false instrument under section 3 of the Forgery and Counterfeiting Act 1981; 
  • possession of a forged passport or documents under section 5 of the Forgery and Counterfeiting Act 1981; 
  • possession of a false identity document under section 6 Identity Documents Act 2010; 
  • failure to have a travel document at a leave or asylum interview under section 2 Asylum and Immigration (Treatment of Claimants) Act 2004.

When reviewing any such cases, prosecutors must be alert to the possibility that the suspect may be a victim of trafficking and take the following steps:

  • Advise the senior investigating officer to make enquiries and obtain information about the circumstances in which the suspect was apprehended and whether there is a credible suspicion or realistic possibility that the suspect has been trafficked (this should be done by contacting the UK Human Trafficking Centre (UKHTC) see: www.ukhtc.org; 
  • The police should be advised to consider referring the suspect through the national referral mechanism (NRM) to the competent authority for victim identification and referral to appropriate support. In the case of children, this can be done by the Local Authority;
  • Prosecutors should also consider information from other sources that a suspect might be the victim of trafficking, for example from a non-government organisation (NGO) which supports trafficked victims. That information may be in the form of medical reports (for example, psychiatrist reports) claiming post traumatic stress as a result of their trafficking experience;
  • Re-review the case in light of any fresh information or evidence obtained;
  • If new evidence or information obtained supports the fact that the suspect has been trafficked and committed the offence whilst they were coerced, consider whether it is in the public interest to continue prosecution. Where there is clear evidence that the suspect has a credible defence of duress, the case should be discontinued on evidential grounds (see separate section on Children).

In complying with the judgment in R v O [2008] EWCA Crim 2835 [add link], it is the duty of the prosecutor to be pro-active in causing enquiries to be made about the suspect and the circumstances in which they were apprehended. In giving their judgment the Court highlighted a number of important issues in cases such as this: 

  • It required that both Prosecutors and Defence lawyers are "to make proper enquiries" in criminal prosecutions involving individuals who may be victims of trafficking, in line with the findings of the Parliamentary Joint Committee on Human Rights report on Human Trafficking, that there must be co-ordinated law enforcement in protecting the rights of victims of trafficking; 
  • CPS legal guidance on the prosecution of trafficked victims was recognised; the court advised that this is published more widely to ensure others are aware of it; 
  • The court, defence and prosecution were criticised for failing to recognise that O was a minor.

In the case of O, guidance on the prosecution of trafficked victims was not followed.

For further guidance refer to Human Trafficking and Smuggling.

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Evidential Considerations

Presumptions and Burdens

Section 24(4) of the 1971 Act provides useful presumptions: 

  • any stamp imprinted on a passport on a particular date for the purpose of giving leave to enter UK shall be presumed to be so imprinted (unless the contrary is proved); 
  • proof that the defendant had leave to enter the UK shall lie on the defendant (although limited to the period 6 months before the date when proceedings commenced; 
  • the burden of proof rests on the person making the assertion that he or she is a British citizen or entitled to an exception under the Act.

It is important that where there is an immigration offence prosecutors approach the review process alive to any ECHR points that may arise out of either the legislation or application of the Code for Crown Prosecutors.

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Documentary Evidence

Section 32(2) [add link] provides for documents made or given by the Secretary of State or signed by him or on his behalf, to be received in evidence. Thus correspondence from the Home Office to potential defendants may be admissible in its own right.

The admissibility of other records, documents etc are subject to the general law of evidence and in particular Sections 117 and 118 Criminal Justice Act 2003. This includes normal Home Office records not falling within the scope of section 32.

As previously stated, difficulties can arise when evidence is required as to the status of an illegal entrant who has already been deported. This evidence is a vital ingredient of the offence in respect of a person charged with assisting a deported illegal immigrant.

Evidence is usually adduced of a list of legal entrants from which the particular illegal entrants name will be missing. The court is then asked to make the simple inference that absence from the list equates with illegality. It has been held that this could only be introduced by a Home Office official responsible for the compilation of the list and that the list was not automatically admissible: the negative inference was not an exception to the hearsay rule: (R v Patel [1981] 3 All ER 94). 
However, section 24 Criminal Justice Act 1988 will allow the admissibility of such a document and it would be open to the court to use it as evidence from which the existence of non-recorded fact could be drawn.

The rules of evidence concern admissibility of acts or statements in the course and furtherance of the common purpose. What was said or done in the course of an attempt to facilitate entry might be admissible against a co-conspirator as being conduct in pursuance of the conspiracy, but what was said in the course of the investigation (e.g. to police constable or Immigration Officer) will only be evidence against the maker.

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Special Cases

Common Travel Area (CTA)

The CTA is defined in section 1(3) as the UK, the Channel Islands, the Isle of Man and the Republic of Ireland. The general principle is that there is no control over movement within CTA if it is only a local journey, i.e. journey begins and ends within CTA and does not go outside it.

There are exclusions from the general principle of no control which may give rise to criminal liability under the Act. Should such a case arise, you should be familiar with the categories of exclusions and additional restrictions regarding entry to the UK from the Republic of Ireland.

EEC Nationals

The Treaty of Rome has had a considerable impact on UK Immigration Law and the rights of EEC nationals in respect of free movement of labour will sometimes arise in the context of allegations of immigration.

EU nationals exercising community rights of free movement do not require leave to enter - section 7 Immigration Act 1988. An EU national entering after an exclusion order was made against him can be prosecuted as an illegal entrant - R v Secretary of State ex p Mann Singh Shingara [1999] Immigration Appeal Reports. The European Court of Justice have stated that illegal entry or a failure to report presence to the authorities does not affect an EC nationals right of residence under community law. This does not prevent any member state from prosecuting such persons, provided the penalty is not so disproportionate to the gravity of the infringement such that it creates an obstacle to the free movement of people - Watson and Belmann [1976] ECR 1185.

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Ancillary Orders

Section 25C of the Immigration Act 1971 (inserted by section 143 Nationality and Immigration Act 2002) provides a power for the forfeiture of vehicles, ships or aircraft used in the commission of the following offences:

  • Section 25 Immigration Act 1971; 
  • Section 25A Immigration Act 1971; 
  • Section 25B Immigration Act 1971; and 
  • Section 4 Asylum and Immigration (Treatment of Claimants etc) Act 2004

For the offences not specifically covered by section 25C, the general power to forfeit items used in the commission of a crime under section 143 Powers of Criminal Courts (sentencing) Act 2000 should be considered.

Disqualification

Under section 146(1) of the Powers of Criminal Courts (Sentencing) Act 2000, the court by or before which a person is convicted of any offence committed after 31 December 1997 may, instead of or in addition to dealing with him in any other way, order him to be disqualified, for such period as it thinks fit, from holding or obtaining a driving licence

These provisions came into effect on 1 January 2004 and are exercisable by all courts in England and Wales.

Consideration should be given to an application for the disqualification of an offender who has used his vehicle to facilitate immigration crimes as this may prevent or disrupt their ability to repeat such offences frequently.

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Deportation

Procedures in relation to deportation are dealt with under the Sentencing - Ancillary Orders, elsewhere in the Legal Guidance.

Deportation of Foreign National Prisoners - Prosecutor's role

1. This guidance sets out the role of the prosecutor in drawing the courts attention to foreign national prisoners eligible for deportation following conviction.

2. There are five ways in which a person can qualify for deportation. These are:

Non-EEA Nationals

  • a custodial sentence of 12 months or more under section 32 of the UK Borders Act 2007; 
  • a custodial sentence of 12 months that is an aggregate of 2 or 3 sentences over a period of 5 years under section 3(5)(a) of the Immigration Act 1971; 
  • a custodial sentence of any length of time for an offence connected to the supply of drugs; 
  • a recommendation for deportation from the sentencing judge made under section 3 (6) of the Immigration Act 1971.

EEA Nationals

  • EEA nationals will be considered for deportation in accordance with the Immigration (EEA) Regulations 2006 where they receive a sentence of at least 12 months (they are an exception to the automatic deportation provisions) or, a recommendation from the sentencing judge. The EEA includes EU member states plus Iceland, Liechtenstein and Norway; it has therefore been subject to enlargement mirroring the accession of new countries into the EU in 2004 and 2007.

Automatic Deportation under (UK Borders Act 2007)

3. Sections 32 to 39 of the UK Borders Act 2007 places a duty on the Secretary of State to make a deportation order in respect of a person who is not a British Citizen who has been sentenced to either: 

4. On 1 August 2008, the 12 months condition was activated. No date has yet been set for the implementation of section 72 offences. The provisions which require the automatic deportation of a non-British citizen who has been imprisoned for a particularly serious offence will be commenced at a later date. However, many of the offences listed in section 72 will be caught also by the 12 month imprisonment threshold. The schedule of offences under section 72 is being reviewed as part of the simplification process being undertaken by the Border Agency, and the two processes may be brought together.

5. The case of R v Kluxen (Patricia) (2010) EWCA Crim 1081 [add link] raised a number of issues concerning the powers attached to the Secretary of State and the Courts respectively when deportation falls to be considered. The principles that emerged in this case in relation to deportation were as follows: 

  • In cases to which the United Kingdom Borders Act 2007 applies it is no longer necessary or appropriate to recommend the deportation of the offender concerned. The issue of the deportation of the offender is solely a matter for the Secretary of State. 
  • In cases to which the 2007 Act does not apply, it will rarely be appropriate either for the Crown Prosecutor or the Courts to recommend the deportation of the offender concerned, whether or not the offender is a citizen of the EU.
    If in a case to which the 2007 Act does not apply and a Court is, exceptionally, considering recommending the deportation of the offender concerned, it should apply the NazarI test in tandem with the Bouchereau test, there being no practical difference between the two. This applies whether the offender is or is not a citizen of the EU. 
  • However, the Court should not take into account the Convention Rights of the offender; the political situation in the country to which the offender may the deported; the effect that a recommendation might have on innocent persons not before the Court; the provisions of Article 28 of Directive 2004/38 [add link] ; or the 2006 Regulations [add link].

The Role of Prosecutors

6. Prosecutors should identify defendants eligible for deportation from information obtained by the police or immigration officer as to their nationality. The prosecutor will then have to consider whether the defendant qualifies for automatic deportation under one of the criteria in Paragraph 2.

7. Prosecutors would have to inform the court verbally that a sentence of X months (this depends on the grounds for deportation see Paragraph 2) will qualify for deportation. This would take place ahead of sentencing. The Court Clerk would then note this, and if the sentence is given, record it on the warrant.

Identification of defendants

8. The Libra system in the magistrates courts and the Crest system in the Crown Court will be amended to allow a defendants nationality to be recorded. When the amendments are completed (not yet known when), courts will be required to enter the nationality of all defendants if this has been provided by the police. The police have also been asked to collect information on the defendants nationality wherever possible, and are expected to pass this to the court. The CPS is not expected to seek this information if it has not been provided.

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Useful Links

Sentencing and Ancillary Orders Applications

OPSI - All Acts post 1988 and statutory instruments.

Disclosure - The Attorney General's Guidelines 2005

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