Category Archives: Uncategorized

Citation – [2015] EWCA Crim 1779 

Date – 2nd October 2015

Keywords – Sentence, s25, illegal entry, smuggling

Overview – Appeal against sentence of 43 months for s25 offence allowed for a one-off and unsophisticated smuggling.

Summary – L was stopped bringing an Iraqi woman and her child into the UK. On the day of trial there was a guilty plea on a basis that this L had randomly met the two women in Europe and felt sorry for them. He agreed to bring them over for 100 Euros.

Although there was an element of scepticism about the basis, no Newton was held and so he fell to be sentenced on that basis. The Judge was right to say that a deterrent sentence was called for, however this was not sophisticated and there was an immediate confession.

In light of this, the appropriate starting point was 2 years rather than 4, with a 10% discount for the late plea. 

Comment –

Although the appeal was allowed, on the basis of plea it could still be considered to be a slightly harsh sentence being far removed from the professional people smuggling operations that are often seen. There is also a further reminder of the importance of being clear as to whether a basis of plea is accepted or not. 

Judges – Macur LJ, Jay & Goss JJ

Citation – Acheampong [2015] EWCA Crim 1894

Date – 4^th November 2015

Keywords – Sentence, false passport, Ovieriakhi,

Overview – Sentence of 12 months for using sister’s passport to gain work reduced to 8 months.

Summary – CA had entered the UK illegally and had an application for a residence card refused. Her sister, DA, had been naturalised as a British citizen.

CA obtained employment in a care home using DA’s passport (willingly supplied by her).

The Judge was referred to Kolawole and imposed a sentence of 12 months immediate for CA and the same, but suspended, for DA.

The Court of Appeal accepted that the fact that it was used for the purposes of work, which put it in a different category.

It was held that the fact that CA had never been lawfully in the UK “places the case above the category of case which includes R v Ovieriakhi, where a 6-month sentence was imposed by the Court of Appeal, and closer to the R v Kolawole category”.

Against that, the fact that it was a genuine British passport lent by her sister, and there was no illegal entry, was mitigation.

The appropriate sentence was therefore 8 months.

Comment –

(1) Ever increasing complexity is brought in to sentencing in this area. It seems that each case the Court deals with brings a new nuance to it. For use at a port, the authorities are clear : 12-18 months on a guilty plea. So far, so good.

For cases where there is use in-country, it is hard to give a clear indication. The range is still probably 6-12 months on a plea, but this case seems to introduce another category of above Overieriakhi but below Kolawole. The rationale being that a higher sentence is applicable for someone who has never been lawfully present. The argument for this does not seem particularly compelling.

Given the number of cases on this point though, it may be time for either the Sentencing Council to address this, or a Court of Appeal be convened to give guidance on these points.

(2)  On a separate point, it is disheartening to note that more than 6 years after Overieriakhi, neither the Judge nor the two advocates seem to have been aware of it.

Judges – Hallett LJ, Edis J, HHJ May QC

Citation – [2015] EWCA Crim 1305

Date – 30th July 2015

Keywords – Conviction, Conspiracy, Bogus Colleges, Participation

Overview – Appeal against conviction of s25 offence dismissed. s25 creates one offence only and on the facts there was sufficient to say that there was an over-arching conspiracy between the organisers and all the beneficiaries. 

Summary – B, A and M were all convicted of a ‘global’ s25 conspiracy related to their involvement in a bogus college. The appeal was based on the dismissal of a half-time submission. The particulars in the indictment alleged that the conspiracy was “facilitating applications to enter or remain“, and the basis of the submission appears to be that there should be two separate conspiracies; one for facilitating an application to enter, and another to remain.

Further, that on the basis that what the evidence disclosed (if anything) was a series of individual conspiracies with each beneficiary and the college, whereas what was alleged was a wider one than that. 

The appeal was dismissed as the jury could draw the inference that the College was known to assist in making bogus applications (albeit that there were genuine applicants also), and that when the dishonest application was made, the beneficiaries were aware that they were part of a common unlawful purpose

Also, s25 contained only one offence – that of facilitation, which can be carried out in different ways, and so it was acceptable to have the single conspiracy.

Comment –

(1) One conspiracy or two? It is hard to see how there are not two separate offences here (if the allegation were substantives then it certainly should have been two counts). An analogy may be with a Brown direction – if there was an allegation that someone facilitated an unlawful entry or ‘remain’, then surely there would need to be unanimity?

In the end, although there was no prejudice, it would be sensible for it to be indicted in future as two separate conspiracies. It certainly won’t overload the indictment, is still easy to present, and the evidence is likely to be different (albeit with a common core), and it may present a future Court of Appeal taking a less benign view.  

(2) One conspiracy or many? This should be read with Mehtab decided a week before. It is unsurprising that the Court would do what it could to dispose of what appears to be a ‘technical’ argument. Although the argument that the beneficiaries were aware (or would care) rather than merely suspicious, about a wider conspiracy would appear to be an optimistic one.

Judges – LCJ, Simon & Patterson JJ

Citation – [2015] EWCA Crim 1665 (unreported / not on BAILII)

Date – 23rd July 2015

Keywords – Conviction, Sham Marriage, Conspiracy

Overview – Appeal against conviction for engaging in a sham marriage allowed where there was not sufficient evidence to show one of the participants of the marriage was part of the wider conspiracy.

Summary – M was a non-EU national who was twice refused a student visa, before being granted one in 2010 (to expire in 2014). In 2011 he married a non-British EU national and applied on the basis of the marriage for an EAA Permit.

There were reasonable grounds for suspecting that the marriage was a genuine one (it was conducted within 2 months of meeting, there were discrepancies over addresses, etc), and they separated in a year

M was indicted with his former spouse as well as 3 other men and a woman who had entered into sham marriages(the maths don’t quite add up, but is not relevant), and 2 people who were alleged to have organised the sham marriages.

M claimed it was simply a genuine marriage that went sour, but was convicted. The appeal was on the basis that although there was sufficient evidence that it was a sham marriage, there was nothing to link M with any wider conspiracy.

Although there were various arguments canvassed, but the appeal was allowed on that basis – even if there was sufficient evidence that M was knowingly entering a sham marriage for the purposes of evading immigration control, there was simply nothing to suggest that this was arranged by the two ‘organisers’.

Comment –

A useful reminder of the need for a bit of formality and consideration by the Prosecution in drafting an indictment. Here, there was a fundamental flaw in the case that really should have been identified at an earlier stage.

Judges – McCombe LJ, Baker & Lewis JJ

Summary of Facts of Criminal Immigration cases

Here is a summary of all the cases where the Court of Appeal have considered the s31 defence since AM & Others. It is a very quick breakdown of the journey to the UK, with a note on other issues if they arise.

None of these are ‘factual precedents’. People with more ‘direct’ routes may fail in the defence (and vice versa) but are set out to show just how wide the defence can be.

Where there are cojoined cases, I have summarised them all in the one case, even if the different appeals have different outcomes.

Appeals allowed as defence would ‘quite probably have succeeded’

• AM & Others [2010] EWCA Crim 2400 –

AM – Somali who came to the UK by plane. The journey was confused, but seems to have been a flight to Egypt, before flying to Italy where he stayed 1½ days and then coming to the UK. Appeal dismissed as AM had received proper legal advice, but there would also be ‘real difficulties’ with the 1½ days in Italy.

MV – Iranian who went by land to Turkey, then by plane to Syria (1 week) before flying to Spain (3 hours spent in the airport).

RM – Somali. Left Somalia by lorry through ‘various African countries’ before flying to the Netherlands (3 days) and on to the UK.

MN – Iranian. Left Iran on a lorry for 25 days, ending up in Greece (2 weeks locked in a flat) before flying to the UK.

• Dastjerdi [2011] EWCA Crim 365 – Iranian, came to UK via Turkey and ‘two other countries’ (length of stay unknown) – was going to Canada but nobody met him at the UK, so claimed asylum.

• Jaddi [2012] EWCA Crim 2565 – Iranian who had previously unsuccessfully claimed asylum in the UK and returned. Came to UK with the help of an agent through Turkey (1 month), Greece (2-3 days), Italy (3-4 days) before flying to Gatwick. There he produced two false documents before being arrested (although there was some dispute about this).

• Adom [2013] EWCA Crim 384 – Ghanian, flew to Egypt (in transit for a few hours), then to UK. Presented passport on arrival then claimed asylum after he was fingerprinted.

• Mateta [2013] EWCA Crim 1372 –

Mateta – national of the DRC, came to the UK via an overnight stay in Belgium, on way to Canada to claim asylum. Arrested at airport when leaving to go to Canada (length of stay in UK unkonwn)

Adukwa – Cameroonian national. Flew to Kenya (where he remained in the airport at all times) then to Heathrow. Arrested trying to leave Manchester airport the next day on a flight to Canada where he was intending to claim asylum).

Bashir – Somali. Travelled via Kenya (1 month), Dubai and Greece (length unknown). Claimed asylum after arrest.

Amir Ghavami & Saeideh Afshar – Iranian husband and wife. Came to UK via Thailand (2 months, flying there on their own passports with a valid visa), Tanzania (20 days), Kenya (7 days) and Spain (20 days). Flew to Gatwick, before getting a bus to Heathrow to fly to Canada where they intended to claim asylum Arrested whilst trying to board the plane.

• Zondo [2014] EWCA Crim 1501 – Zimbabwean, came to the UK via South Africa and Qatar (length of time unknown). Non-counsel application, so very little detail.

• Hassein [2014] EWCA Crim 1978 – Somali, left Somalia and spent 2 years in Kenya. Didn’t claim asylum there as “he did not wish to be held in a refugee camp where he could not earn a living in order to support his family”. Came to UK via Tanzania (with a stop of about 3 weeks), not stopping there as he “did not come across any refugee camps, and in any event did not know how to apply for asylum”.

• Sadiqi [2014] EWCA Crim 2479 – Iranian husband and wife. Came to UK via Turkey and then by air to Spain (length of stay unknown), intending to travel to the USA to claim asylum there.

Claimed aslyum in the UK after arrest.

• Sadeghi [2014] EWCA Crim 2933 – Iranian. Left via Turkey, before flying to Tanzania, then going to Zambia by train, before flying to the UK (length of time in those countries unknown). Intending to go on to Canada to claim asylum. Spent 7-8 days in UK before being arrested trying to board a flight to Canada. Claimed asyum 23 days after arrival in the UK.

It is worth noting some comments from the Court of Appeal :

“he could not reasonably have been expected to claim asylum in Turkey, Tanzania or Zambia. Indeed it is clear that in any event he was under the control of an agent at that time who was conducting his intended transit to Canada, which provides a perfectly sensible explanation, on his part, as to why he did not seek asylum in any of those places.

Thirdly, it was explicable that he did not present himself to the authorities in the UK. As will be evident from the facts which we have set out above, he was, at the time of being in the UK, in transit to Canada having been told he was not able to claim asylum in the United Kingdom … Fourthly, having accepted that the appellant had good reason not to claim asylum in the United Kingdom prior to his arrest and whilst still in transit, he did in fact claim asylum, on 3 February 2012, not long after the criminal proceedings in his case had been concluded”.

• Mulugeta & others [2015] EWCA Crim 6 –

Mulugeta – A non-passport case (the charge was under s24A Immigration Act 1971 – seeking leave to enter by deception). Appeal dismissed as the defence could not apply – he had entered the UK on a valid visa and claimed asylum later. The charge was based on lies told in the Screening interview, and therefore had nothing to do with the purpose of the s31 defence (see s31(6)).

Issa – Somali, came to the UK via Dubai (some weeks), then transiting through Holland.

Firouzi – Iranian, came via Thailand and Uganda (total of 6 weeks). Spent 14 days in the UK before being arrested trying to board a flight to Canada where he was intending to claim asylum.

The Court of Appeal accepted that by presenting the false passport to an Immigration Officer when he arrived in the UK meant that he had presented ‘himself to the auhtorities as soon as he arrived in the’ UK and an issue as to when the asylum claim was made was resolved in his favour.

• Shabani [2015] EWCA Crim 1924 – Iranian. Left via Turkey, before flying to Spain (11 days), then to the UK.

• Nguidjol [2015] EWCA Crim 2073 – Cameroonian, On his way to Canada when stopped at the airport entering the UK. Came via Nigeria (an unspecified length of time), France (10 days) and Spain (2 days).

Other cases

Appeals in the following cases were dismissed.

• Kamalanathan [2010] EWCA Crim 1335 – Sri Lankan who came to the UK via Russia, then Poland, then by land. Was in the UK for a month before being arrested whilst trying to leave the country to go to Canada. Told Immigration Officers on arrival that he was intending to come to the UK to claim asylum. In light of that, he had ‘stopped running’ and there was no good reason for him to not claim asylum.

Para 5 is useful “The real question is, looking at all the circumstances: is the person in the course of a flight? Is he making a short-term stop over? Is he in transit? Whichever phrase is used, one has to see whether at the material time the person was here, not having come to this country either temporarily or permanently seeking to stop here, but was going on. That is a question of fact.”

• C [2011] EWCA Crim 2911 – Angolan who came to UK in slightly opaque circumstances, allegedly with a doctor from MSF, arrested trying to leave the UK to go to Sweden. Appeal dismissed as the FTT had twice disbelieved C’s account of his journey to the UK.

• Sadighpour [2012] EWCA Crim 2669 – appeal dismissed after Court of Appeal considered FTT reasoned decision that his account was not credible and he was not a refugee.

• Ghorbani [2015] EWCA Crim 275 – appeal dismissed as proper legal advice given.

You can download a word copy of this here.