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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.

The CPS last year piloted the administering of a simple caution to foreign national offenders committing document offences who consented to being removed on a voluntary basis. These pilots are continuing until new provisions in the Legal Aid and Sentencing Provisions Bill come into force later this year, when the Directors Guidance on Conditional Cautioning will provide national guidance on this type of diversion.

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); 

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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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 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. 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. 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). 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(2) of the Act defines an immigration law as a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of that State, entitlement to enter, transit or be in the State.

This definition has been clarified and reinforced by the Court of Appeal in the case of Kapoor & Ors [2012] EWCA Crim 435 which held that section 2 Asylum and Immigration (Treatment of Claimants) Act 2004 is not an immigration law for the purposes of Section 25(2). Under Section 25(2) an immigration law is a law determining whether a person is lawfully or unlawfully entering, transiting or being in the UK. Section 2 creates an offence of not having an immigration document at a leave or asylum interview and merely controls or regulates the entitlement to be in the UK and therefore cannot be relied upon as the immigration law which has been breached. The Court described the purpose of the Section 2 offence as an offence to deter and punish a person who comes to the UK and who has, by the time he presents himself at a leave or asylum interview, divested himself of a passport without reasonable excuse.

Before considering charge then, early consultation with the UKBA may be advisable in determining whether the law breached falls into an entitlement to enter, transit or be in the UK or is merely regulatory or administrative in nature. UKBA officers have been alerted to name the specific breach on the MG3 when referring cases to the CPS and to note it on the MG5.

In Kapoor & Ors the Court expressed surprise that there was no reference to the particular immigration law said to have been breached in the particulars of offence in the indictment, as the defendant is entitled to know which particular law he is being accused of breaching. For the purposes of settling indictments then in cases alleging Section 25(1) Immigration Act 1971, care is required in selecting the immigration law said to have been breached and consideration should be given to specifying the immigration law in the particulars of offence.

Where the offence has been committed to assist asylum seekers, as in the case of +, but there are difficulties in obtaining evidence of direct (financial) gain to support an offence under Section 25A, prosecutors should consider whether there might be sufficient evidence to infer gain in return for assistance in facilitating a breach of immigration law. In Kapoor some of the appellants were on benefits and yet were able to travel on a number of occasions by air to India during a short period, stay in hotels and re-purchase flight tickets when their boarding passes were handed over to an escort. Even though there was no direct evidence of gain, the jury could have been asked to infer that their circumstances and their agreement to act as they did was for gain. Each case will of course depend on its own circumstances.

In cases where prosecutors are considering a charge of conspiracy to commit Section 25(1), the prosecution must prove knowledge and intention by the defendants and not merely "reasonable cause for believing" that the act would facilitate the commission of a breach of immigration law. (Saik [2006] 2 AC 18)

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.

Whilst Naillie is an important case, the Section 25 offence has since been amended by Section 143 Nationality, Immigration and Asylum Act 2002.

Other helpful references can be found in R v Javaherifard and Miller [2005] EWCA Crim 3231 which gives guidance on what is likely and not likely to constitute facilitation of another person's unlawful stay in the UK.

Prosecutors are also alerted to the case of Sternaj & Sternaj v DPP [2011] EWHC 1094 (Admin) - see statutory defences: Section 31. The appellants were convicted of Section 25(1) offences but in dismissing their appeals the Court remarked that in a case such as this where the appellants were registered asylum seekers who facilitated a young child (the son of one of the appellants) using another child's passport, the prosecution might question whether it was in the public interest to prosecute.

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.

Prosecutors are alerted to the case of Kapoor & Ors [2012] EWCA Crim 435 (see Section 25(1) guidance) in which there were difficulties in obtaining evidence of direct (financial) gain to support a charge under Section 25A. Prosecutors should consider whether there might be sufficient evidence to infer gain in return for assistance in facilitating a breach of immigration law by those who then may go on to (falsely) claim asylum.

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 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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Sham Marriages

A sham marriage is a marriage of convenience entered into with the intention of gaining immigration rights for one of the spouses. Whilst referred to as a sham marriage, the union itself is still legally valid if it conformed to the formal legal requirements for marriage. However, entering into a sham marriage does not entitle migrants to any right to remain in the UK. Following the "marriage" the parties must apply for the right to remain.

Sham marriages typically occur when a non-European national marries someone from the European Economic Area (EEA), including the UK, as a means of attempting to gain long-term residency and the right to work and claim benefits. An individual sham marriage is often part of a wider organised crime network which may consist of multiple sham marriages and other criminal activity including money laundering and identity fraud.

Section 24 Immigration and Asylum Act 1999 creates a duty on a superintendent registrar to whom a notice of marriage has been given to report suspicious marriages where they have reasonable grounds for suspecting that the marriage will be a sham marriage. However, Section 24 does not apply to persons who wish to marry within the Anglican Church. The UK Border Agency issued guidance to clergy in April 2011, which advises members of the clergy who suspect a sham marriage for immigration purposes to report their suspicions to the UKBA or police.

Prior to 9 May 2011 any migrant who was already in the UK and subject to immigration control, had to apply for a certificate of approval before they could marry or register a civil partnership, unless they married within the Anglican Church. On 9 May 2011 the certificate of approval scheme was abolished. From this date then, there is no longer need to show:

  • a certificate of approval or,
  • an entry clearance for the purpose of marriage or registering a civil partnership or,
  • settled status in the UK.

The abolition of the Certificate of Approval scheme does not affect our ability to prosecute those involved in breaches of immigration law.

A range of offences might be disclosed in cases of sham marriage. The significant increase in numbers of cases referred have revealed different criminality dependant on the number and identity of the participants and the role they play. For example the suspects who have arranged the ceremony and the participants at the wedding including witnesses and the vicar conducting the ceremony can be charged with assisting unlawful immigration (facilitation) and conspiracy to facilitate breach of immigration law. A matrix describing a range of scenarios, the suspects to be charged and potential offences which might be considered is below.

Good practice

  • Early consultation with the SIO is recommended:
  • To identify whether the sham marriage case is part of a larger, more complex investigation.
  • Where conspiracy charges are to be considered in circumstances where the arrangements for the marriage have taken place outside the UK, although the marriage or breach of immigration law is to take place within the UK, the consent of the Attorney General may be required before charges can be brought.
  • To identify whether there are ongoing immigration tribunal proceedings running in conjunction with the criminal investigation. If the claimant is granted leave to remain this might undermine a prosecution.
  • To ensure that effective case building takes place to influence the direction of the investigation, resolve potential jurisdictional issues and advise on confiscation strategy in the event of money laundering or proceeds of crime investigation.

Cases involving sham marriage

SUSPECTS/ DEFENDANTS

The suspects who have arranged the ceremony.
Participants at the wedding including witnesses

CHARGE
Section 25(1) Immigration Act 1971
Assisting unlawful immigration (facilitation)

Section 1(1) Criminal Law Act 1977
Conspiracy to facilitate breach of immigration law 

FACTS
A female from the EU is brought to the UK to marry a non EEA national (African) male. She is paid for going through the marriage ceremony and is returned when the marriage is completed.  

COMMENTS
By virtue of section 4(5) of the CLA 1977, a charge of conspiracy under section 1(A) Law Officer consent is required.

SUSPECTS/ DEFENDANTS

Parties to the sham marriage

CHARGE
Section 1 Criminal Law Act 1977
Conspiracy to facilitate breach of immigration law 

FACTS
An EU national female living in Scotland contracts a marriage with a non EEA national (Pakistani) male residing in England. The marriage then takes place in Scotland. The documents to apply for a visa / leave to remain by the groom are lodged in England. 

COMMENTS
Conspiracy under Section 1(1) CLA 1977 could not be used as S. 1A (2) states that the act/event must be intended to take place outside the UK; Scotland is not outside. Under S.1 (a) CLA a conspiracy between a person in England and a person abroad to commit a crime in England is indictable in England which seems to cover this case even though the act (marriage) is in Scotland.

SUSPECTS/ DEFENDANTS

Parties to the sham marriage

CHARGE
Conspiracy under section 1(1) CLA

FACTS
Marriage of convenience between 2 Jamaicans and 2 Bulgarians in England 

COMMENTS
Consideration of Section 24(1)(a) Immigration Act 1971 Obtain leave to enter or remain in the UK by deception was preferred in first instance but after legal argument in court, it was decided that the concept of leave to remain is different and is not the same as residency.

SUSPECTS/ DEFENDANTS

Vicar presiding over sham marriage 

CHARGE
Section 1(1) Criminal Law Act 1977
Conspiracy to facilitate breach of immigration law.

FACTS
Hundreds of fake marriage ceremonies conducted at his church to enable illegal African immigrants to gain residency in UK. The brides were economic migrants from Eastern Europe paid to go through the marriage ceremony by the organiser, a co-conspirator. Monies paid to the vicar to conduct the ceremonies were used to bolster the church's ailing finances.

SUSPECTS/ DEFENDANTS

Organised Crime Networks

CHARGE
Section 25(1) Immigration Act 1971
Assisting unlawful immigration (facilitation)

FACTS
Network of organised criminals organise sham marriage(s) and arrange and pay for EU Brides to marry non EEA nationals in the UK 

SUSPECTS/ DEFENDANTS

Organised Crime Networks
 
CHARGE
Section 1(1) CLA 1977
Conspiracy to facilitate breach of immigration law  

FACTS
Grooms are based in Pakistan and brides from the EU travel to Pakistan to marry the groom. The EU bride then travels to the UK and submit an application for a visa for their husband to join them in the UK. 

COMMENTS
Where a conspiracy takes place outside England and Wales and a person residing in England/ Wales becomes a party to the agreement, they can be charged with conspiracy contrary to section 1(1) of the Criminal Law Act 1977. However, the prior consent of the Attorney General is required to prosecute.

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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.

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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 may 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.

It is likely that in cases where any element of organisation or financial gain is involved will inevitably make it more suitable for trial on indictment rather than 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 created 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 the 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. This is likely to be in 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 or imprisonment not exceeding 12 months. 

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 consideration of 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.

The Court held in the case of Kapoor & Ors [2012] EWCA Crim 435 that Section 2 of the 2004 Act is not an immigration law for the purposes of section 25(2) Immigration Act 1971. Under Section 25(2) an immigration law is a law determining whether a person is lawfully or unlawfully entering, transiting or being in the UK. Section 2 merely controls or regulates the entitlement to be in the UK and therefore cannot be relied upon as the immigration law which has been breached.

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 -
i. delaying the handling or resolution of a claim or application or the taking of a decision,
ii. increasing the chances of success of a claim or application, or
iii. 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) 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) 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:

a) on conviction on indictment, to imprisonment for a term not exceeding 2 years, to a fine or to both, or
b) 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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Forgery and Counterfeiting and Offences

The Forgery and Counterfeiting Act 1981 creates the following offences:

  • Section 1 - Forgery - making a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice.
  • Section 2 - Copying a false instrument which is, and which he knows or believes to be, a false instrument, with the intention that he or another shall use it to induce somebody to accept it as a copy of a genuine instrument, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice.
  • Section 3 - Using a false instrument which he knows or believes to be, false, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice.
  • Section 4 - Using a copy of a false instrument which is, and which he knows or believes to be, a false instrument, with the intention of inducing somebody to accept it as a copy of a genuine instrument, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice.
  • Section 5 - Custody or control of false instruments and manufacture, custody, or control of equipment or materials to make them. The instruments to which this section applies include:

      (a) money orders;

      (b) postal orders;

      (c) United Kingdom postage stamps;

      (d) Inland Revenue stamps;

      (e) share certificates;

(f) passports and documents which can be used instead of passports; (This   was repealed on 7 June 2006 by the Identity Cards Act 2006 and now replaced by the Identity Documents Act 2010)

(g) cheques;

(h) travellers' cheques;

(j) cheque cards;

(k) credit cards;

(l) certified copies relating to an entry in a register of births, adoptions, marriages or deaths and issued by the Registrar General, the Registrar General for Northern Ireland, a registration officer or a person lawfully authorised to register marriages; and

(m) certificates relating to entries in such registers.

A person guilty of an offence shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years (for offences under sections 1 to 4 and Section 5(1) and (3) only) or on summary conviction to imprisonment for a term not exceeding six months, a fine not exceeding the statutory maximum, or both. A person guilty of an offence under Sections 5(2) and (4) on conviction on indictment shall be liable to imprisonment for a term not exceeding 2 years.

Jurisdiction

We can prosecute for certain offences if a "relevant event" occurred in England or Wales - Criminal Justice Act 1993 Part 1 (Home Office Circular 19/1999). This includes Sections 1 to 5 of the Forgery and Counterfeiting Act 1981, an offence under Section 25 Identity Cards Act, replaced by sections 4, 5 and 6 Identity Documents Act 2010. This applies whether or not the defendant was in England or Wales at any material time, and whether or not he was a British citizen at any such time

Offences of Forgery of Specific Items

  • Registers of births, marriages & deaths etc - Section 8 Non-parochial Registers Act 1840, and Sections 36 and 37 Forgery Act 1861.
  • Passports - Section 36 Criminal Justice Act 1925
  • Judicial Documents - Section 133 County Courts Act 1984
  • Dies and stamps - Section 13 Stamp Duties Management Act 1891.
  • Land Registration - Sections 115 to 117 Land Registration Act 1925.
  • Statutes and executive documents - Section 4 Evidence Act 1845, Section 4(1) Documentary Evidence Act 1868, Section 3 Documentary Evidence Act 1882.
  • Hallmarks - Section 6 Hallmarking Act 1973
  • Road Traffic Documents and Licences - Section 173 Road Traffic Act 1973 and Section 44 Vehicle Excise and Registration Act 1994.

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Identity Document Offences

Section 25 of the Identity Cards Act 2006 (ICA) was introduced to tackle the misuse of identity documents referred to in Section 26 of the Act. The ICA came into force on the 7 June 2006 but was repealed on 21 January 2011 and substituted by offences in Sections 4, 5 and 6 of the Identity Documents Act 2010. Where evidence supports a possession offence prior to the 21 January 2011, then offences should be charged under the 2006 Act.

Offences under the Identity Cards Act 2006

Section 25(1) creates an offence for a person to be in possession of a document which he knows or believes to be false or a genuine document that has been improperly obtained or relates to someone else. The person must have the intention that the document be used for identity fraud by establishing registrable facts. (subsection 2).

Section 25(3) creates an offence for a person to be in possession or have under his control, equipment which is designed or adapted for making false identity documents. Both these offences are triable only on indictment and carry a maximum sentence of 10 years' imprisonment or a fine or both (subsection 6).

Section 25(5) creates an offence for a person to have in his possession, without reasonable excuse, one of the following: a false identity document; or an identity document that has been improperly obtained; or an identity document that relates to someone else, or equipment used for making false identity documents. This is an either-way offence which carries on indictment two years' imprisonment or summarily the statutory maximum. The meaning of 'false' has the same meaning as in section 9 of the Forgery and Counterfeiting Act 1981.

Section 26 defines what is meant by an "identity document". This includes documents that already exist such as passports, driving licences, immigration documents such as visas, as well as other existing identity documents issued within or outside the UK.

Offences under the Identity Documents Act 2010

The Identity Documents Act came into force on 21 January 2011 and repeals Sections 25 and 26 of the Identity Cards Act 2006 with effect from that date.

Section 4(1) replaces section 25(1) of the Identity Cards Act 2006 and creates an offence for a person (P) with an improper intention to have in their possession or under their control:

(a) an identity document that is false and that P knows or believes to be false
(b) an identity document that was improperly obtained and that P knows or believes to have been improperly obtained, or
(c) an identity document that relates to someone else.

Section 5(1) replaces Section 25(3) of the Identity Cards Act 2006 and creates an offence for a person with prohibited intention to make or have in their possession or under their control:

(a) any apparatus which to their knowledge is or has been specifically designed or adapted for the making of false identity documents; or
(b) any article or material which, to their knowledge, is or has been specifically designed or adapted to be used in the making of such documents.

Apparatus is defined in Section 9 of the Act.

Both these offences are triable only on indictment and carry a maximum sentence of 10 years' imprisonment or a fine or both

Section 6(1) replaces Section 25(5) of the Identity Cards Act 2006 and creates an offence for a person without reasonable excuse to have in their possession or under their control:

(a) an identity document that is false,
(b) an identity document that was improperly obtained, or
(c) an identity document that relates to someone else.

This is an either-way offence which carries on indictment two years' imprisonment or summarily the statutory maximum.

Section 7 defines what is meant by identity document and includes an immigration document, a United Kingdom passport or a passport issued by or on behalf of authorities outside the UK, a document which can be used instead of a passport or a driving licence issued in or outside the UK.

Section 31 Immigration and Asylum Act 1999 (see below) creates a statutory defence to offences of travelling on false documents for a refugee claiming asylum. The offences to which this defence applies in this section are any offence, or any attempt to commit an offence, under:

Part 1 (Sections 1 to 5) of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);
Sections 25(1) and (5) of the Identity Cards Act 2006 (possession of false identity documents)
Sections 4(1) and 6(1) of the Identity Documents Act 2010 (replacing the above offences under the Identity Cards Act 2006)

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Statutory Defences

Section 31 of the Immigration and Asylum Act 1999

Section 31 is based on the wording of Article 31 of the 1951 UN Convention Relating to the Status of Refugees (the Refugee Convention).

Under section 31(1) of the Immigration and Asylum Act 1999 it is a defence for a refugee charged with an offence to which this section applies to show that he has come to the United Kingdom directly from a country where his life or freedom were threatened (within the meaning of the Refugee Convention) and that he has:
      a. presented himself to UK authorities without delay;
      b. showed good cause for his illegal entry or presence; and
      c. made a claim for asylum as soon as was reasonably practicable after his arrival in the UK.

Section 31(2) provides that if, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the UK, then subsection (1) will only apply if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.

Under section 31(3) 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 Immigration Act 1971 (deception);
  • Section 26(1)(d) of the Immigration 1971 Act (falsification of documents).
    Sections 25(1) and (5) of the Identity Cards Act 2006 (possession of false identity documents) until 21 January 2011
  • Sections 4(1) and 6(1) of the Identity Documents Act 2010, which replace sections 25(1) and (5) of the Identity Cards Act 2006 with effect from 21 January 2011.

Prosecutors will note that offences under the Fraud Act 2006 are not included within section 31(3).

Under section 31(5) any refugee who has made a claim for asylum is not entitled to this defence in relation to any offence committed by him after making that claim.

Section 31(8) makes this statutory defence retrospective in its application. A person who was convicted of an offence to which this section applies but at no time during the proceedings for that offence argued that he had a defence based on Article 31(1), may apply to the Criminal Cases Review Commission. (see R v AM, MV, RM and MN [2011] below).

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 Kingdom's obligations under Article 31.

It is a defence under section 31(1) for a refugee charged with an offence to which this section applies to show that:

  • he has come to the UK directly from a country where his life or freedom was threatened within the meaning of the 1951 UN Convention; (Prosecutors should have regard here to the judgment in R v Asfaw - see below - which indicates that 'coming directly' should be interpreted in such a way that the provision is given a liberal interpretation so that a person may travel through several countries until he eventually applies for asylum.);
  •  he presented himself to the authorities in the United Kingdom without delay.
  •  he has good cause for his illegal entry or presence;
  •  he has made a claim for asylum as soon as reasonably practicable after arrival in the United Kingdom (this is not defined in the Act);
  •  if he stopped in another country outside the UK having left the country where his life or freedom was threatened, that he could not reasonably have expected to be given protection under the 1951 Convention in that country; and
  •  he claimed asylum after having committed the offence from which he seeks protection from conviction. Consequently, a defendant who enters the country either clandestinely or legally, claims asylum, and then obtains false documents for use in attempting to travel to another country, would be outside the scope of section 31.

Information from the UK Border Agency (UKBA)

It remains the case that the CPS is reliant upon the UKBA for information and evidence relevant to an assessment of whether a defence under section 31 may apply. See SXH v CPS [2013] EWHC 71 (QB) at paragraph 85.

In all cases which are submitted to the CPS for a charging decision and for which a defence under section 31 could apply, a prosecutor will require proper information to inform a decision on charge.

Information and evidence relevant to an assessment of whether a section 31 defence may apply should include:

  • Any credible evidence that the suspect has a section 31 defence available to him. This should cover all the elements of the defence set out above including whether he is a refugee (within the meaning of the Refugee Convention) and the outcome of any application for asylum.
  •  If there is no such evidence, an explanation on the MG3 as to why the UKBA officer has taken the view that the suspect is not entitled to the protection afforded by the section 31 defence, with any evidence to support that view

Burden and standard of proof

In order to avail himself of a section 31 defence, the defendant will need:

  • to adduce evidence to raise the issue of whether he was a refugee within the meaning of the 1951 UN Convention (a refugee being "a person who has left his own country owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion") see R v Liliane Makuwa [2006] EWCA Crim 175. Subject to section 31(7), it will then be for the Crown to prove beyond reasonable doubt that he was not a refugee, if this is not accepted.
  •  to prove on a balance of probabilities that he did not stop in any country in transit to the United Kingdom or alternatively, that he could not reasonably have expected to be given protection under the Refugee Convention in the countries outside the United Kingdom in which he stopped; and if so
  •  to prove on a balance of probabilities that he presented himself to the authorities in the United Kingdom.
  •  to show good cause on the balance of probabilities for his illegal entry or presence.
  •  to prove on the balance of probabilities that he made a claim for asylum as soon as reasonably practicable after his arrival in the UK.

Evidential Stage

Refugee Status determined by UKBA

If a suspect is a refugee and the UKBA determines that the other conditions in the section 31(1) and (2) criteria are met, then no charges should be brought.

Where the UKBA submit a case for charging advice on the basis that the section 31(1) and (2) conditions have not been met, prosecutors must carefully consider the evidence submitted in accordance with the principles laid down in R v Makuwa and R v Bakhshi Dastjerdi [2011] EWCA Crim 365. If the defence is likely to succeed no prosecution should be brought for offences where the defence applies.

If the suspect is not a refugee, it is immaterial whether he fulfils the other section 31(1) and (2) conditions; the defence is not then available. It will be a matter for the UKBA to consider deportation/removal and/or refer the case to the CPS for a charging decision.

Refugee Status yet to be determined

Where a suspect's refugee status is yet to be determined or is the subject of an appeal to the Immigration Appellate Authority, yet the suspect has complied with all the other conditions set out in sub-sections 31(1) and (2), it would normally be appropriate to await the outcome of the asylum proceedings before making a decision on charge. This would usually be appropriate where the UKBA indicates that a decision will be made about a suspects refugee status within a reasonable amount of time.

Where a suspect's refugee status is yet to be determined but he does not fulfil all, or any, of the other conditions under sections 31(1) and (2), the UKBA must provide evidence on why section 31(1) and (2) conditions have not been met to inform a decision on charge.

It is Parliament's intention that all conditions under section 31(1) and (2) be complied with in order to afford a suspect a statutory defence. If any of the conditions are not complied with, prosecutors should (subject to the public interest stage) consider charge and prosecution.

Trial

In the event the UKBA indicates that a suspect's refugee status is yet to be determined, but the prosecutor decides it is nevertheless appropriate to charge the suspect, then prior to a trial or at the earliest possible case management hearing, where a section 31 defence is raised the officer in the case should be asked to provide a written update on the defendant's refugee status. Where the defendant claims to be a refugee and no determination has been made, the Crown's position should be that while not accepting the merits of the refugee claim, we will not seek to establish that he is not a refugee for the purpose of the criminal trial. In such cases there will be no issue for the jury to decide and no need to explain the term - see R v Liliane Makuwa [2006] (para 37). No concessions should be made in respect of his refugee status if it has not been determined.

The prosecutor should consider the circumstances of each case in deciding if the time indicated by the UKBA to resolve the suspect's refugee status requires awaiting the outcome of the asylum application or proceeding to charge.

Where the delay in the UKBA's decision has been caused by the suspect themselves, by, for example, providing multiple contradictory accounts, a period of absconding, or the deliberate destruction of identity documents by the suspect in order to hinder enquiries into his or her country of origin, a charge could be considered notwithstanding that the suspect's refugee status has not been decided.

Prosecutors are advised to read the full judgment in the case of R v Liliane Makuwa [2006] for guidance on what facts give rise to a section 31 defence, the burden of proof and how the jury should be directed. The defence and judiciary should also be served with a copy of the case to ensure that all parties dealing with the issues apply the principles set down in that case.

Interpretation

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

a. Section 31 of the Immigration and Asylum Act 1999 should not be read as limited to offences attributable to the refugee's 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 refugee's 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.

When considering whether a person who had entered the UK on a false passport was "in transit" within the meaning of section 31, the Court advised in the case of R v SK [2010] that the phrase had to be given generous interpretation and, looking at all the circumstances, decide whether the person was in the UK in the course of flight. In SK the appeal was dismissed; it was clear that the appellant had intended to come to the UK to seek asylum and that his decision to go to Canada had been made during his stay in the UK. On that basis, once in the UK his journey had ended and he was no longer in transit.

In the case of Sternaj & Sternaj v DPP [2011] EWHC 1094 (Admin) the Court was asked to consider to what extent, if at all, an individual would be entitled to rely on the protection afforded by Article 31 where he is charged under section 25(1) Immigration Act 1971 for facilitation, or where the defendant himself is an asylum seeker. The appeals were dismissed as there was no realistic possibility of an interpretation of section 31 such that a third party assistant or facilitator might be protected. However the Court remarked in their judgment that in a case such as this where the appellants were registered asylum seekers who facilitated a young child (the son of one of the appellants) using another child's passport, the prosecution might question whether it was in the public interest to prosecute.

Prosecutors should consider whether accounts given by asylum seekers could give rise to a defence; the position is sometimes not properly assessed until after an appeal. In R v AM, MV, RM and MN [2011] 1 Cr App R 35 the appellants appealed their convictions under the Identity Cards Act on the basis that they had not received advice on the merits of the section 31 defence which rendered their convictions unsafe. The Court was critical that those advising a defendant charged with an offence to which the defence provided for by section 31 applies; should make clear the parameters of the defence so that the defendant can make an informed choice of whether to seek to advance it. It was said that advisors should properly note the advice given and the instructions received. (Archbold 25-285 (supplement).

The same could apply to offences under the Identity Documents Act 2010.

When such a defence is likely to be raised, the police should be requested to obtain evidence from the UKBA officer in the case to establish the situation on refugee status and asylum claim.

Public Interest Stage

Where the evidential stage of the Full Code Test is passed (having taken the availability of the statutory defence into account) prosecutors must then, as with every case, assess the public interest in accordance with the Code for Crown Prosecutors. Even if not sufficient to found a defence in law, information regarding the personal circumstances or characteristics of the suspect - for example, their age or the state of their physical or mental health, may be relevant factors when deciding if a prosecution is required in the public interest. Where this is available it will ordinarily be supplied by the UKBA. However, prosecutors can also consider information from other sources including the police, other investigators, the suspect or those acting on his or her behalf. Such factors may have an impact, for example, on the likely penalty that the court will impose.

However, it should be borne in mind that offences connected with the possession or use of false documents for travel are serious and this is often reflected in the penalties imposed upon those convicted of such offences. As the Code for Crown Prosecutors states, a prosecution will usually take place unless the prosecutor is sure that there are public interest factors against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served in the first instance by way of an out of court disposal.

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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: NCA - UK Human Trafficking Centre
  • The police / UKBA 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, 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) 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

Forefeiture

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

Undersection 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 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; or the 2006 Regulations .

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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