Condomiti

Citation – [2015] EWCA Crim 806

Date – 24th April 2015

Keywords – Sentence, fraud, asylum support

Overview – Sentence of 36 weeks for falsely claiming asylum support reduced to allow for immediate release

Summary – C claimed asylum as an Eritrean in Croydon 2010, stating that she had entered the country with an agent’s passport. This was false, as she used her own (genuine) Italian one. As a result of the claim, she received £4,751.22 whilst her claim was under consideration. When that failed, she applied for a National Insurance Number with her Italian passport, which was (properly) granted.

Meanwhile, she failed to keep in touch with the immigration authorities, being arrested in 2013. She pleaded guilty to fraud relating to the above amounts and pleaded guilty, saying that she was a joint Eritrean/Italian national and had claimed asylum after losing her Italian passport and becoming destitute.

The Judge did not accept that she was Eritrean. It was put at a 5A offence on the Sentencing Guidelines (p29).

The Court of Appeal accepted she was a dual national and criticised the other ways the Judge had (mis)applied the guidelines. The sentence was reduced to allow for her immediate release

Comment 

This is more one for general criminal lawyers, who may find it of interest. A couple of things :

(1) Asylum support is covered by the Benefit Fraud guidelines. In reality, this is almost unheard of as an offence, so will be unlikely to be repeated.

(2)  That account should be made of benefits that could have been claimed seems evident. But it has not been uncontroversial, so it is good to see it confirmed – “We also do not understand how the judge can treat the benefit as being the sum total of the benefits paid to the applicant in her capacity as an asylum seeker without taking some account of the benefits she would otherwise have been entitled to as an Italian national, ie Job Seeker’s Allowance“.

The DWP do not routinely assist with the calculation in relation to this, taking the view that the offence is the fraudulent claim, so this is not relevant. This should help with persuading the Court that the prosecution should undertake the calculation.

(3) Good character is an additional mitigating feature, which should be taken into account when choosing where to place the case in the guidelines. This is a feature in the ‘new’ form of guidelines that is clear on the face of it, but it is good to have it confirmed (para 18).  

(4) It seems to me that the fact that C was an Italian citizen, and therefore entitled to work, is a clear aggravating feature.

(5) Lastly, and a small point, when reducing the sentence to ‘time served’ say this “we quash the sentence, we substitute for it a sentence of two months and two weeks or such other period, if that figure turns out to be incorrect, as the appellant has in fact served and it follows that she is to be released forthwith from custody” which is not an order I’ve seen before. It may indicate an acceptance by the Court of the greater complexity in sentencing 

Judges – Rafferty LJ, Green & Edis JJ

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