1 – PASSPORT OFFENCES

Criminal Offences I – Passport Offences

USING A FALSE PASSPORT

Legislation

1. The offence of using a false passport will be charged under the following Acts, depending on the date of commission:

• 21^st January 2011 onwards – s4 Identity Documents Act 2010

• 7^th June 2006-20^th January 2011 – s25 Identity Cards Act 2006

• Prior to 7^th June 2006 – s3 Forgery & Counterfeiting Act 1981

2. The offences under the 2006 and 2010 Acts are both indictable only, whilst the FCA offences are either way. It is unclear why this was changed.

3. s3 Forgery & Counterfeiting Act was efugee

4. epealed (by virtue of s44) when the Identity Cards Act 2006 received Royal Assent on 30^th March 2006. This appeared to leave a lacuna whereby it was not a criminal offence to have or use a false passport. This was filled by the Divisional Court in R (CPS v Bow Street Magistrates’ Court) [2006] EWHC 1763 (Admin), where it was held that this was an obvious drafting error, that the Court could fill.

4. s25 was formally brought into force by a Commencement Order dated 31^st May 2006.

5. If the offence is charged under the wrong Act, then this is fatal to the conviction : Abdul [2012] EWCA Crim 1788 (unreported), confirmed in Stocker [2013] EWCA Crim 1993.Note that in Idhoiaissine [2015] EWCA Crim 1872 (unreported) this view was doubted, or at least left open for another day.

Definitions

6. The offence under the 2010 is created by s4:

Possession of false identity documents etc with improper intention

(1) It is an offence for a person (“P”) with an improper intention to have in P’s possession or under P’s 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.

(2) Each of the following is an improper intention—

(a) the intention of using the document for establishing personal information about P;

(b) the intention of allowing or inducing another to use it for establishing, ascertaining or verifying personal information about P or anyone else.

(3) In subsection (2)(b) the reference to P or anyone else does not include, in the case of a document within subsection (1)(c), the individual to whom it relates.

7. An ‘Identity Document’ is defined in s7(1) as :

(a) an immigration document,

(b) a United Kingdom passport (within the meaning of the Immigration Act 1971),

(c) a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom or by or on behalf of an international organisation,

(d) a document that can be used (in some or all circumstances) instead of a passport,

(e) a licence to drive a motor vehicle granted under Part 3 of the Road Traffic 1988 or under Part 2 of the Road Traffic (Northern Ireland) Order 1981, or

(f) a driving licence issued by or on behalf of the authorities of a country or territory outside the United Kingdom.

With ‘immigration document’ defined further in s7(2) as :

(a) a document used for confirming the right of a person under the EU Treaties in respect of entry or residence in the United Kingdom,

(b) a document that is given in exercise of immigration functions and records information about leave granted to a person to enter or to remain in the United Kingdom, or

(c) a registration card (within the meaning of section 26A of the Immigration Act 1971).

8. ‘Personal Information’ is defined in s8:

(1) (a) A’s full name,

(b) other names by which A is or has previously been known,

(c) A’s gender,

(d) A’s date and place of birth,

(e) external characteristics of A that are capable of being used for identifying A,

(f) the address of A’s principal place of residence in the United Kingdom,

(g) the address of every other place in the United Kingdom or elsewhere where A has a place of residence,

(h) where in the United Kingdom and elsewhere A has previously been resident,

(I) the times at which A was resident at different places in the United Kingdom or elsewhere,

(j) A’s current residential status,

(k) residential statuses previously held by A, and

(l) information about numbers allocated to A for identification purposes and about the documents (including stamps or labels) to which they relate.

(2) In subsection (1) “residential status” means—

(a) A’s nationality,

(b) A’s entitlement to remain in the United Kingdom, and

(c) if that entitlement derives from a grant of leave to enter or remain in the United Kingdom, the terms and conditions of that leave.

Meaning of Identity Document

9. The definition covers almost every document that could be used as a passport, or in lieu of a passport (and a few more besides). As well as passports, it includes any “document that can be used (in some or all circumstances) instead of a passport”. This appears extremely wide, and presumably must be read with some sort of restriction as to the reasonableness of whether a passport would truly by required.

10. A passport issued by an authority that is not recognised by the UK would presumably be covered by ‘territory’ in s7(1)(c). In any event, it would come with the ‘catch all’ subsection (d).

11. It is worth noting that a National Insurance Card would not appear to be a Identity Document as it contains no means of identifying the bearer.

12. In Osunderu [2011] EWCA Crim 3122 there had been guilty pleas to three Counts, Count 3 being possession of a false National Insurance Card (under the 2006 Act, with a near identical definition). Nothing was said about this in the Court of Appeal, although the conviction was quashed as the date of the offence meant that that offence was charged under the wrong section. Further it seems to have been initiated as an appeal against sentence only.

False

13. Under the legislation, a document can be ‘false’ in three ways (s4(1)):

(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.

14. For the purposes of s4(1)(b), a document is ‘improperly obtained’ if (s9(3)):

(a) false information was provided in, or in connection with, the application for its issue to the person who issued it, or

(b) false information was provided in, or in connection with, an application for its modification to a person entitled to modify it.

15. A genuine passport with a forged stamp in it will be a false document by virtue of s9(5) – “References to the making of a false identity document include the modification of an identity document so that it becomes false”, this being a s4(1)(a) offence.

16. A passport, or stamp within a genuine passport, that is obtained by deception will also be false, but under s4(1)(b).

17. It can be seen that by virtue of subsection (c), the document need not be ‘false’ in any normal sense of the word. The position of a person who holds a genuine document on behalf of another to use themselves is specifically exempted from liability (s4(1)(3)).

Defences

18. As well as the usual defences, the Refugee Convention defence applies (see here).

Intention

19. 1. In YY [2016] EWCA Crim 18, YY “presented himself to an immigration desk … together with an Israeli passport … When the immigration officer challenged him as to whether that passport was genuine, he admitted that it was false”. The CPS accepted that there was no ‘improper intent’, presumably as he had handed the passport over and not tried to pretend that it was his.

20. This was noted without comment by the Court of Appeal, but would seem a generous decision, and one that would ride a coach and horses through the legislation.

                                                                                                                     Sentencing

21. The offence is indictable only, with a maximum sentence of 10 years.

22. There are no Guidelines from the Sentencing Guidelines Council.

21. For use of a false passport at the UK border, “the appropriate sentence, even on a guilty plea, by a person of good character, should now usually be within the range of 12 to 18 months”, even on a plea of guilty, and has been since at least Kolawole [2004] EWCA Crim 3047.

22. In reality, the lower end of that tariff is generally the starting point taken by most judges. In Court centres near to international airports where there are many of these cases are seen, the ‘going rate’ is frequently lower (8-10 months).

23. However, if a sentence is passed in the above 12-18 months range, then it is unlikely to be successfully appealed.

24. A critical distinction is drawn between where the passport was used to enter the country (and thereby evade immigration controls), and for ancillary purposes (such as someone with no status obtaining work illegally).

25. After an element of diversion from different constitutions of the Court of Appeal, this was confirmed in the case of Overieriakhi [2009] EWCA Crim 452. O pleaded guilty to an offence under the 2006 Act. She was a Zimbabwean national who had arrived in the UK legally and overstayed. She obtained employment at a nursing home.

26. The Court concluded (paras 15 and 16) “At one end of the scale is the use or possession for use of false passports for the purpose of evading, or enabling others to evade, the controls on entry into the United Kingdom. Such evasion may at worst be for terrorist or other malign purposes, or at least for the purpose of securing the entry of someone into the United Kingdom which would otherwise be forbidden. The documents may be possessed by those whose business it is to help others to circumvent the rules on entry. At the other end of the scale is the use by someone who is lawfully in the United Kingdom of a document other than a passport for the purpose of obtaining employment or a bank account”.

27. “Where, however, a false passport is used to obtain work or a bank account, its use does not enable the offender to obtain entry to the United Kingdom and for that reason it may properly be treated less severely than the use of a passport which does, or may, have that effect. What the use of a passport to obtain work does, however, do is to facilitate the offender remaining in the United Kingdom in breach of immigration controls. For that reason a custodial sentence is usually required. But it can justifiably be less, particularly if the offender is of good character and has done no more than use or try to use it to seek employment in order to maintain himself/herself or his/her family”.

28. Drawing that together “there is a valid distinction to be made between use of a false passport to gain entry and its use to gain work”, and passed a sentence of 6 months. This (with full credit for a plea of guilty) has now become the standard tariff, or at least the starting point, for in-country use of a passport.

29. It is not fixed (Overieriakhi establishes a continuum from 6 to 12 months rather than a fixed tariff). This still leave a number of cases that are grey areas. A paradigm example being where the charge relates to in-country use, but it is clear that there has been an illegal entry, but no Count is on the indictment in relation to that. In Owolabi [2012] EWCA Crim 1853 a 12 month sentence for possession of a counterfeit British passport and a counterfeit Nigerian Passport with a counterfeit Indefinite Leave to Remain stamp in it was upheld. O had not entered the UK lawfully.

30. The sentence was upheld (on a plea of guilty), it was said:

(1) The appellant had two false passports and she pleaded guilty to both counts of having them with intent.

(2) It seems clear, at least so far as concerns the entry into this country in 2009, she had entered illegally.

(3) The matter could no doubt have been clarified by the appellant but she has wholly resisted doing so. We accept that there was legal advice not to answer the questions, but, in consequence, we have nothing from her in evidential form which could assist in clarifying how she obtained the passports and when she did so.

31. On that basis, “although the evidence does not establish that the two passports were used to gain entry illegally into this country, the inference is irresistible that they have nonetheless been used to circumvent immigration control in enabling her to live and work here”.

32. Whilst this makes sense, it is a fine line between inflating the sentence because of the circumstances, to sentencing for offences not indicted. Here, the passports were used in relation to a bank account. The argument that this is part and parcel of living an ‘illegal’ life, and therefore the 12 month sentence is excessive.

33. In Acheampong [2015] EWCA Crim 1894 it was held that there was a distinction to be drawn between those who had never been in the UK legally (who could expect a sentence somewhere between Overieriakhi and Kolawole) and those who had at some point been lawfully present (with presumably a further distinction for those who entered lawfully) at some time, which were ‘true’ Overieriakhi cases.

33. In cases of individuals who enter into ‘sham marriages’ in country for the purpose of evading immigration control, these are sentenced on the same basis of Kolawole (Kuku [2010] EWCA Crim 2533 and Gambo [2011] EWCA Crim 491) with a guideline of 12-18 months on a guilty plea.

34. For offences that involve driving licences, a significantly shorter sentence is appropriate, even though many will attract an immediate custodial sentence (4 months for using a false driving licence in Hoxha [2012] EWCA Crim 1765).

POSSESSION OF A FALSE PASSPORT

35. On the face of it, what distinguishes the offences of simple possession is the ulterior intent. It is slightly more complicated that this however.

Legislation

36. The offence is defined under s6(1):

It is an offence for a person (“P”), without reasonable excuse, to have in P’s possession or under P’s control—

(a) an identity document that is false,

(b) an identity document that was improperly obtained,

(c) an identity document that relates to someone else,

(d) any apparatus which, to P’s knowledge, is or has been specially designed or adapted for the making of false identity documents, or

(e) any article or material which, to P’s knowledge, is or has been specially designed or adapted to be used in the making of such documents.

Intention

37. In Jamalov [2010] EWCA Crim 309, J had produced a fake Czech driving licence, but with his correct name, after a road traffic accident. He pleaded guilty to the s25(1) offence under the 2006 Act. On appeal against conviction it was argued that it did not come within the Act, as it contained his correct details, and it was not therefore being used to establish any false ‘registrable facts’. The appeal was dismissed as “When asked whether he had any identification, he produced the false driving licence. By his plea of guilty, he was admitting his intention to use the false driving licence for the purposes of establishing who he was”.

38. Given that there was a plea of guilty, this conclusion is understandable. But someone who has a false driving licence with the intention of using it only to establish that they can drive will not therefore be guilty of the aggravated offence.

39. This should be the case even if some of the other details are incorrect, although as a matter of evidence, it will be less believable.

40. Although on the face of it, it is hard to see why someone would have a false passport without the relevant intention, this will apply to false documents that are passed their expiry date so they cannot be used.

Defences

41. Although knowledge or belief in falsity is required for s4 and not for s6, this does not create an entirely strict liability offence as there is a ‘reasonable excuse’ defence in s6. Belief that the document is a genuine one is not sufficient, of itself, a complete defence. However, it is a relevant factor in deciding whether a reasonable excuse is established – “although the fact that the defendant does not know or believe that the document is false is not of itself and without more a reasonable excuse, a defendant is entitled to ask the jury to consider objectively whether he has a reasonable excuse for possessing the material and for not having destroyed it or handed it in to the authorities, and the fact that he does not know or believe that it is a false document, because of the circumstances in which it has been obtained, may well have a bearing on that question” (Unah [2011] EWCA Crim 1837).

42. The reasoning of the Court of Appeal is not entirely clear, and it is not clear why a belief in the genuineness of the document that someone has is not an entire defence. Someone who has a belief that a document is real would obviously have no intention to destroy it or hand it to the authorities, and it may well be that on a future case the Court of Appeal would revisit this.

43. The same applies under s25 of the 2006 Act.

Sentence

44. Possession is an either way offence, with a maximum sentence of 2 years. There are no Sentencing Guidelines.

45. There is no guideline case, but clearly the lower maximum sentence means that a lower sentence can be expected than for the offence of possession with intent. Further, there is a greater range of sentences that are passed for this.

46. Sentences as high as 8 months have been passed (reduced from 12 in (Vargas [2011] EWCA Crim 2482)), although this should probably be seen as an outlier. It is hard to see how, absent some very unusual circumstances, a sentence higher that the 6 months in Overieriakhi could be justified (see Marques [2014] EWCA Crim 1078 as an example – 12 months for possession of six blank, forged Italian passport covers).

47. Cases where a defendant has an expired passport should not be sentenced on the basis that they had previously been used without a count on the indictment to reflect this.

48. In general, these cases can be dealt with in the magistrates court (Jamalov) and a suspended sentence or Community Order is appropriate in certain cases (Li [2012] EWCA Crim 1052).

49. Care must be taken that there is no suggestion that a defendant is being sentenced for possession with intent, and be true to the indictment. It also follows from this that the prosecution must be careful before accepting a plea to the lesser offence. (Goodings [2012] EWCA Crim 2586)

50. Should a false driving licence, that has less value as an immigration document for international travel, attract a lower sentence? On the basis of the purpose of the legislation, this would appear to be a proper distinction to be drawn.

ENTERING WITHOUT A PASSPORT (s2)

Legislation

51. The offence is under s2 Asylum and Immigration (Treatment of Claimants etc) Act 2004.

“(1) 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.”

(3) But a person does not commit an offence under subsection (1) or (2) if—

(a) the interview referred to in that subsection takes place after the person has entered the United Kingdom, and

(b) 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.

(4) “It is a defence for a person charged with an offence under subsection (1)—

…………

(c) To prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1),

(d) To produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or

(e) To prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document.

(6) Where the charge for an offence under subsection (1) or (2) relates to an interview which takes place after the defendant has entered the United Kingdom –

(a) subsection (4)(c) and (5)(c) shall not apply, but

(b) it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document in accordance with subsection (3).

(7) 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.”

52. As was noted by the then Lord Chief Justice in Thet v DPP [2006] EWHC 2701 (Admin), the “draftsmanship of the section leaves much to be desired”. This is, if anything, an understatement.

53. In recent years, there has been a sharp drop in prosecutions for this offence.

Definitions

54. The offence is set out in s2(1) – not having a passport at a ‘leave or asylum’ interview.

55. A “leave or asylum interview” means (s12) 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 Kingdom’s 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.”

56. The term ‘immigration document’ for the purposes of subsection 1 is defined in subsection 12 – “immigration document” means—

(a) a passport, and

(b) 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”

57. This should be contrasted with the concept of a ‘false immigration document’ in s2(13):

(a) a document which purports to be, or is designed to look like, an immigration document, is a false immigration document, and

(b) an immigration document is a false immigration document if and in so far as it is used

(I) outside the period for which it is expressed to be valid,

(ii) contrary to provision for its use made by the person issuing it, or

(iii) by or in respect of a person other than the person to or for whom it was issued.

58. The reference in s2(1) to a passport therefore means a genuine passport. This follows from Thet and Mohammed & Osman [2007] EWCA Crim 2332, the latter now being the leading judgment on the interpretation of the Act (albeit that the judgment is not itself particularly clear).

59. The offence can be committed in two different circumstances, as reflected in subsections (4) and (6). This depends on whether the defendant has ‘entered’ the United Kingdom (with ‘enter’ given its legal meaning).

60. In practice, someone who claims asylum at a port of entry will come under s2(4), someone who comes in on false papers, or clandestinely, and claims asylum at a later stage, will have to rely on the defence under s2(6).

61. s2 contains a parallel offence for someone who attends an interview without a document for a dependent child.

General Defences

62. The s31 defence does not apply to this offence. In Embaye [2005] EWCA Crim 2865, the Crown accepted that “the offence created by section 2 of the 2004 Act falls within the ambit of” Article 31.

63. This concession was not investigated, as the Court concluded that it was up to Parliament how to incorporate (or not) Art 31, and therefore this would not assist the Appellant in any event. Whether this would now survive the House of Lord’s judgment in Asfaw [2008] UKHL 31 is unclear. It is certainly arguable.

64. The offence cannot be committed by an EU national (or a family member of an EU national exercising Treaty rights. The burden of proving this is on the defendant (s2(4)(a) and (b)).

Defences – interview at point of entry (under s2(4))

65. There are 3 separate defences in s2(4)(c)-(e). (d) is straightforward; anyone who travels on a false document to the UK, and then produces it, will have a defence. As they will almost inevitably be claiming asylum, then they may well have the s31 defence to the passport charge.

66. In relation to (e), notwithstanding that the defence refers to ‘immigration document’ this was held to not be an ‘immigration document’ as defined in s2(13), as this would defeat the purpose of the legislation (as it clearly would, although the argument of the Court of Appeal on this point is unconvincing), but rather “an immigration document, or false immigration document” should be read in to it.

67. As stated by the former Lord Chief Justice, the drafting of this offence is not happy. It can be assumed that Parliament’s intention was clear – s2 should have read ““an immigration document, or false immigration document”, but in Thet he felt unable to ignore the plain words of the statute.

68. As to (c), see below

Defences – interview after entry (s2(6))

69. Someone who claims asylum in-country has a 3 days ‘grace period’ within which to submit their genuine document (s2(3)).

70. s2(6) disapplies the reasonable excuse defence under s2(4)(c), but it is re-enacted in the same terms, but to cover the situation where somebody has a reasonable excuse not to provide their genuine document within the grace period.

Reasonable Excuse

71. This defence of reasonable excuse is a legal, rather than an evidential, one on the defendant (Embaye).

72. Following Thet and Mohammed, the position is that if someone is unable to produce their own document because they do not have it in the UK to be produced, then this is capable of constituting a reasonable excuse.

73. In Thet, the appellant was a Burmese dissident who could not obtain a passport from his home country due to his political activity. In Mohammed, the appellants were Somalis where there was no functioning state who could have issued either of them a passport. These were both held to be reasonable excuses.

74. El Hudarey [2008] EWCA Crim 1761, concerned a Libyan had his own passport, but left it behind because, due to persecution in Libya, he ‘felt unable to travel to the UK with his own genuine passport’. This was held to be a reasonable excuse.

75. What is unclear is to what extent there must be an element of reasonableness in the reasonable excuse. Someone who has never had a passport for the above reasons clearly has a reasonable excuse. Similarly with someone who had their own passport but could not take it with them due to a fear of persecution if it is discovered.

76. But what about somebody from the USA (say) who does not have a passport because they never applied for one. Or someone who leaves it at home due to an irrational fear of persecution, or simply to avoid committing this offence? Are these of itself reasonable excuses, or do those individuals have to show that there is a reasonable reason for their actions? This is not clear, although Mohammed would tend towards the latter interpretation.

77. The defence of ‘reasonable excuse’ is further refined in s2(7) which has an extraordinary ‘double reasonableness’ clause – a reasonable excuse is needed, but deliberately disposing of a document is not reasonable, unless this was for a reasonable cause, and complying with the directions of an agent is not a reasonable cause, unless it is unreasonable to expect non-compliance.

78. This is a near impossible direction to give to the jury.

79. A judge should not withdraw the defence or reasonable excuse until the evidence has been completed. Even in those circumstances, the fact that a defence appears ‘hopeless’ is not reason to withdraw a defence – it is a matter for the jury (Asmeron [2013] EWCA Crim 435).

Sentence

80. The offence is either way, with a maximum sentence of two years. There are no sentencing guidelines.

81. The first case in the Court of Appeal was Wang [2005] EWCA Crim 293 where the sentence was reduced to two months due to the exceptional features of the case (the fact that she was just 18, had an extant asylum claim and had only had possession of the false passport for a matter of minutes). This would normally be the lowest sentence that would be passed on an adult. 

83. Asentence of 9 months was reduced to 5 months in Ai [2005] EWCA Crim 936, for a similar case, and one that can be considered a ‘usual’ case (but involving someone aged 26). The Court of Appeal noted that co-operation with an agent can be mitigation, but caution had to be taken to not elevate it’s significance, and so undermine the specific exclusion from the defence.

83. The Court reconsidered sentence levels in Jeyarasa [2014] EWCA Crim 2545. A sentence of 12 months for a Sri Lankan who left his passport in Sri Lanka and flew to the UK to claim asylum (which he did immediately at the airport) was reduced to 6.

84. Although it was noted that higher sentences could be expected now as opposed to 2005 due to greater public concern, and that the asylum claim had been refused, it does not seem that this sentence was that out of line with Ai.

85. It would seem that, unless there are some unusual features, a sentence of more than 9 months may well be manifestly excessive (at least on a guilty plea).

Guidance

86. Guidance is available from the Home Office here, and from the CPS here. Both are broadly accurate, but the extensive reference to Khalif [2015] EWHC 917 (Admin) in the CPS guidance should be approached with caution.

FAILING TO CO-OPERATE WITH REMOVAL (s35)

87. It is an offence under s35 Asylum and Immigration (Treatment of Claimants, etc) Act 2004 to fail to co-operate with a direction given by the Secretary of State.

Legislation

88. If a person, without reasonable excuse, fails to comply with a direction from the Secretary of State, then that is an offence under s35.

89. The direction is made under subsection (1):

(1) The Secretary of State may require a person to take 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.

90. Examples of the directions include (but are not limited to)

(2) In particular, the Secretary of State may require a person to–

(a) provide information or documents to the Secretary of State or to any other person;

(b) obtain information or documents;

(c) provide biometric information (within the meaning of section 15 of the UK Borders Act 2007), or submit to a process by means of which such information is obtained or recorded;

(d) 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;

(e) cooperate with a process designed to enable determination of an application;

(f) complete a form accurately and completely;

(g) attend an interview and answer questions accurately and completely;

(h) make an appointment.

Definitions

91. There have been very few prosecutions for this offence, it being seen generally as an action of last resort.

92. An issue under (g), and potentially (f), may arise as to the privilege against self-incrimination.

Defences

93. Unlike the offence in s2, ‘reasonable excuse’ is not limited in the statute. It must however be a reason why the person is unable to comply, rather than merely being unwilling to do so – “As a matter of law, reasons why a defendant is unwilling to comply with a s.35 requirement with which he is perfectly able to comply cannot constitute a reasonable excuse for non-compliance” (Tabnak [2007] EWCA Crim 380).

93. R (Babbage) v Home Secretary [2016] EWHC 148 (Admin) concerned a Judicial Review of decision to detain. There is a discussion of the s35 offence at paras 71-75. Mr Babbage was a Zimbabwean national who did not want to return, and had not co-operated.

93. In relation to whether there could be a prosecution for failing to ‘complete the disclaimer form accurately and completely’ and ‘to attend an interview at the Zimbabwean High Commission’, Garnham J “I have the gravest doubt whether a breach of Section 35 could be made out against the Claimant. The Claimant was being asked to sign a document indicating that he intended to leave the United Kingdom. If, in truth, he did not intend to leave the United Kingdom he could not properly be required to sign the voluntary disclaimer; or to put it another way, he would have a reasonable excuse for not doing so”.

93. Tabnak was not referred to, and it is likely that this will not be followed.

94. The s31 defence does not apply to the offence. As the offence would be committed after the entry to the UK, it would seems that that is consistent with Art 31.

95. Further, a fear of persecution is not capable of amounting to a reasonable excuse (Tabnak).

Sentence

96. The offence is an either way one, with a maximum sentence of 2 years. There are no sentencing guidelines.

97. It seems likely that similar sentences to the s2 offence will be passed. As the defendant is likely to be in detention, anything other than an immediate custodial sentence would be surprising.

MAKING AN UNTRUE STATEMENT TO OBTAIN A PASSPORT

Legislation

98. Under s36 Criminal Justice Act 1925, it is an offence to make a “forgery of any passport, or the making by any person of a statement which is to his knowledge untrue for the purpose of procuring a passport, whether for himself or any other person”.

Definitions

99. In practice, where there is a making of a forgery, this would be charged under the Identity Documents Act 2010.

100. There is no requirement for dishonesty (McCrea (2013) unreported).

Procedure

101. Where an application for a passport is successful, it is appropriate to charge the offence under the Fraud Act 2006, and there is no need to be constrained by the maximum sentence of two years (Ashbee (1989) 88 Cr App R 357).

102. Where it is unsuccessful, this offence is the correct charge, although it would not be an abuse to charge an offence under the Fraud Act 2006 (which requires only a false statement, not that anything is obtained (Bunce [1993] 96 Cr App R 274). On general principles, a sentencer should consider themselves bound by the two year maximum (Hardy [2013] EWAC Crim 2125)

Sentence

103. The offence is either way, with a maximum sentence of 2 years. There are no sentencing guidelines.

104. The case of Walker [1999] 1 Cr App R(S) 42 has been suggested as a guideline case of sorts. This suggested a sentence of 9 months following a guilty plea for a Zimbabwean overstayer who pretended to have been born in the UK in an application form.

105. In Crossdale [2006] EWCA Crim 2541 it was noted that a higher sentence would now be applicable following Kolawole. Allowance must presumably be made for the fact that the maximum sentence is two years instead of ten. However, this does not leave much room between the two as this offence is less serious that the ‘Kolawole’ ones

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OFFENCES UNDER THE BRITISH NATIONALITY ACT 1981

106. s46 British Nationality Act 1981 creates two summary only offences that relate to the operation of the Act. In practice, these are rarely, and there are no cases from the Divisional Court dealing with them.

Legislation

107. The offences are :

(1) Any person who for the purpose of procuring anything to be done or not to be done under this Act—

(a) makes any statement which he knows to be false in a material particular; or

(b) recklessly makes any statement which is false in a material particular,

shall be liable on summary conviction in the United Kingdom to imprisonment for a term not exceeding three months or [a level 5 fine]

108. There is a less serious offence

(2) Any person who without reasonable excuse fails to comply with any requirement imposed on him by regulations made under this Act with respect to the delivering up of certificates of naturalisation shall be liable on summary conviction [to a level 4 fine]

Procedure

109. For the offence under subsection (1), the information must be laid either within 6 months of commission or within 3 years and “not more than two 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 police force”.