3 – Deception and Leave Offences

ILLEGAL ENTRY (s24)

Offences

1. s24 Immigration Act 1971 creates a set of summary only offences that relate to persons who are not British Citizens :

(a) entering without leave / in breach of a Deportation Order

(b) (i) remaining beyond a grant of leave

(ii) failing to observe a condition of leave that has been granted

(c) overstaying following a period of valid leave granted under s8 (an exemption for crew members)

(d) failing to comply with directions relating to health checks

(e) failing to comply with employment or reporting conditions

(f) leaving a boat or aircraft that he was put on to be removed (either administratively or by virtue of a deportation order)

(g) embarking contrary to an Order in Council made under s3(7) Immigration Act 1971 (there are currently no such orders)

2. In practice, these are rarely, if ever, charged. Where they have been charged (certainly in the last twenty years or so) it is normally where another, more serious, charge has been laid (Bucpapa [2005] EWCA Crim 521 – forged passport / entering without leave, Gabier [2008] EWCA Crim 985 – false ID docs / remaining beyond a period of leave granted).

3. Where these offences are most likely to occur are as being the underlying breach of immigration law for the s25 Facilitation offence.

4. The offences under (b)(i) and (c) are continuous ones, whereas the others will be committed on the day that the infraction occurs.

Defences

5. Offences (a) and (b) can only be committed ‘knowingly’. (d) and (e) have a defence of ‘reasonable excuse’. There is no guidance as to what can or cannot amount to a reasonable excuse.

6. The s31 defence does not apply of any of the s24 offences. This can best be described as an oversight, particularly in relation to (a)-(c). In Asfaw [2008] UKHL 31, Lord Roger (who was in the minority) stated :

“the offence of entering the United Kingdom unlawfully, contained in section 24 of the Immigration Act 1971, is not listed in section 31(3). Nor is the offence of attempting to obtain services by deception, contrary to section 1(1) of the Criminal Attempts Act 1981. While, for the reasons I shall give, the omission of the second provision is entirely understandable and correct, as presently advised, I am at a loss to understand why the first of these provisions has been omitted from the lists in section 31(3) and (4), since section 24, like section 24A, falls four-square within the terms of article 31. Article 31 is designed indeed for precisely that kind of offence.” (para 77)

7. If a refugee, or presumptive refugee, were to be charged with this offences only in circumstances where Art 31 would offer them protection, then it is certainly arguably an abuse of process, this being the only way in that a prosecution could be defeated.

Procedure

8. Although the offences are all summary only, under s28 there is an extended time limit for the bringing of a prosecution.

9. This means that s127 Magistrates’ Court Act 1981 does not apply as usual. Instead, an offence can be prosecuted if it is started within 6 months of commission, or within 3 years of the offence, provided it is started no more than 2 months after the ‘the date certified by an officer of police above the rank of chief superintendent to be the date on which evidence sufficient to justify proceedings came to the notice of an officer of the police force to which he belongs‘.

10. By analogy with similar provisions in the Social Security Acts, a valid certificate is conclusive of when sufficient evidence for a prosecution arose, subject to the ability to stay for an abuse of process in suitable cases (Azam [2009] EWHC 3177 (Admin)).

11. For illegal entry under (a), the burden is on the prosecution to show that the entry was illegal, unless this was within 6 months of the start of the proceedings, in which case the burden is on the defence (presumably to the usual civil standard).

Sentence

12. The maximum penalty for all these offences is 6 months or a Level 5 (unlimited) fine.

13. There are no guidelines and, as noted above, where there has been any remotely recent case it has come alongside a more serious charge and attracted a concurrent sentence which does not assist in establishing any guidance.

DECEPTION (s24A)

Legislation

14. s24A Immigration and Asylum Act creates two more serious ‘leave’ offences.

15. This came into force on 14^th February 2000. It is therefore unlikely, but not impossible, for offences to be prosecuted that pre-date this as a continuing offence (Badur v Birmingham Crown Court [2006] EWHC 539 (Admin)).

Definitions

16. The offence is as follows :

Deception

(1) A person who is not a British citizen is guilty of an 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

(2) “Enforcement action”, in relation to a person, means

(a) the giving of directions for his removal from the United Kingdom (“directions”) under Schedule 2 to this Act or section 10 of the Immigration and Asylum Act 1999

(b) the making of a deportation order against him under section 5 of this Act; or

(c) his removal from the United Kingdom in consequence of directions or a deportation order

Separate Offences / Leave

17. The offence cannot be committed by a British Citizen (who would not require leave to enter).

18. Enforcement action is exclusively defined in s24A(2) as being (a) giving of Removal Directions, (b) making a Deportation Order, and (c) removal in accordance with either of the other two.

19. It is not clear whether there needs to actually be enforcement action in progress, or merely that the defendant contemplates them and the dishonest act is done ‘in case’. It is presumably the latter.

20. There is a distinction between EEA nationals and Non-EEA nationals as to how the law applies. Under EU law, an EEA national does not require leave to enter, and so somebody who obtains a residence permit by deception does not commit the offence under (a) (Boateng [2016] EWCA Crim 57).

21. It is arguable that they would commit the offence under subsection (b) by virtue of Reg 24 Immigration (European Economic Area) Regulations 2006 as they would then be “treated as if he were a person to whom section 10(1)(a) of the 1999 Act applied”.

22. This would depend on whether ‘as if he were a person’ is sufficient to bring him in (b), and whether the contemplated removal would not be sufficiently remote. Somebody in this position who obtained a Residence Permit could be charged with a document offence in relation to that.

23. The deception has to be committed by the Defendant, and it must be a material (albeit not a sole) cause of the grant of leave or deferral of enforcement action.

Defences

24. The s31 Defence applies to this offence.

Sentence

25. The offence is either way, with a maximum sentence of 2 years.

26. Although the maximum sentence is a fifth of that for using a false passport, it has been seen by the Courts as being equivalent to the Kolawole offences, so the same tariff will apply : 12-18 months even on a guilty plea (Ali [2001] EWCA Crim 2874 and Deng [2010] EWCA Crim 1979).

27. There is no distinction in culpability between the s24A(1)(a) and (b) offences (Deng [2010] EWCA Crim 1979).

28. The Court should not try to assess any asylum claim in trying to assess sentence (Deng [2010] EWCA Crim 1979).

29. When sentencing youths then, in accordance with general principles, different considerations apply. Special attention should be paid to the role of agents in suchs cases, and a custodial sentence is not inevitable (K v Croydon Crown Court [2005] EWHC 478 (Admin)).

FALSE STATEMENT FOR MARRIAGE

Definition

30. This is an offence contrary to s3 Perjury Act 1911 which is defined as follows :

(1) If any person –

(a) for the purpose of procuring a marriage, or a certificate or licence for marriage, knowingly and wilfully makes a false oath, or makes or signs a false declaration, notice or certificate required under any Act of Parliament for the time being in force relating to marriage; or

(b) knowingly and wilfully makes, or knowingly and wilfully causes to be made, for the purpose of being inserted in any register of marriage, a false statement as to any particular required by law to be known and registered relating to any marriage; or

(c) forbids the issue of any certificate or licence for marriage by falsely representing himself to be a person whose consent to the marriage is required by law knowing such representation to be false,

(d) with respect to a declaration made under section 16(1A) or 27B(2) of the Marriage Act 1949—

(i) enters a caveat under subsection (2) of the said section 16

(ii) makes a statement mentioned in subsection (4) of the said section 27B,

which he knows to be false in a material particular

31. The false statement must be in relation to something that the law requires should be stated correctly (Frickey [1956] Crim LR 421 – a false declaration on a form purporting to give parental consent that was for the convenience of the Superintendent Registrar, but not mandatory, was not an offence contrary to s3).

32. The offence is the making of the false statement, and it does not matter whether the statement was acting on.

33. As with other offences of perjury, by virtue of s13 Perjury Act, “A person shall not be liable to be convicted of any offence against this Act, or of any offence declared by any other Act to be perjury or subornation of perjury, or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false”.

34. This means that before there can be a conviction, there needs to be two sources of evidence of the falsity of the statement. This can be two witnesses, or one witness and another source independent of that witness.

35. The only exception is if the case is put not on the basis that the statement was false, but that whether or not it was, the defendant did not believe it to be true.

36. This can also be satisfied by two people who hear a confession by a defendant.

Defences

37. s3(2) reads :

“No prosecution for knowingly and wilfully making a false declaration for the purpose of procuring any marriage out of the district in which the parties or one of them dwell shall take place after the expiration of eighteen months from the solemnization of the marriage to which the declaration refers”

38. This should be interpreted so that it will only apply if the false declaration is made for the purpose of procuring the marriage out of the relevant district, rather than procuring a marriage that happens to be outside the relevant district. Ie, it will not be a defence if the relevant false declaration is nothing to do with the location of the marriage (Garvin [2005] EWCA Crim 2088 – a not entirely uncontroversial interpretation).

39. This has the consequence of severely limiting the impact of the defence. It dates from 1836 which, amongst other matters, created provision for civil marriages and to recognise those from religions and denominations other than the Church of England, Quakers, and Jews.

40. There were not many places for people who were not members of the Church of England to get married and so provision was made to allow people to marry out of their district provided they declared their reasons, their place of intended marriage, and that there was no location in their home district. s3(2) re-enacts the defence that such a false declaration could only be prosecuted if started within 18 months.

Impact on Civil Partnerships

41. Marriages includes the conversion of a civil partnership to marriage.

42. An analogous offence for civil partnerships was created by s80 Civil Partnership Act 2004. This has the same maximum penalty.

43. The rules contained in s13 Perjury Act applies (s80(4)), but there is no equivalent of s3(2).

Sentence

44. The maximum sentence is 7 years.

45. Assuming that the offence is committed for the purposes of evading immigration control, then the appropriate sentence is the same as for the Kolawole type of offences; 12-18 months imprisonment (Kuku [2010] EWCA Crim 2533 and Biloum [2004] EWCA Crim 3462).