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. 


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

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Citation – Acheampong [2015] EWCA Crim 1894

Date – 4th 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.


(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

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Bhatti & Others

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.


(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

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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’.


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

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Citation – [2015] EWCA Crim 1561

Date – 26th August 2015

Keywords – Sentence, False ID documents, in country 

Overview – Sentence of 16 months on a guilty plea for false ID docs

Summary – B was a Romanian national, in the UK lawfully. Having opened a bank account in a false name, he tried again (with a different false identity) a month later, where he was caught with a false Spanish ID card. Seemingly charged with one offence of possession of a false ID document (the Spanish ID card) and pleaded guilty at the earliest opportunity, full credit from a starting point of 2 years.

D was sentenced on the basis that he was “employed by an organised crime group to carry out these acts for them so that they could further their fraudulent and criminal aims“.

It was held that on the Ovieriakhi spectrum, this offending was at the more serious end and had the potential to undermine the banking system.

Comment – It is interesting that although B was lawfully entitled to be in the UK, this is treated as more serious than the Ovieriakhi cases where a spectrum of 6-12 months is the norm. The fact that the offence was committed not to assist someone in remaining in the country, but for gain, is treated as being an aggravating feature. 

Although that would appear to be correct, the sentence here is double what would be expected in other cases. Given that it was accepted that B had no involvement other than in opening the bank accounts, this seems more than just a severe sentence. 

Judges – Beatson LJ, King & Males JJ

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Summary of caselaw on the s31 defence

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 – 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 – 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.


You can download a word copy of this here.

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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


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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Khalif v Isleworth Crown Court

Citation [2015] EWHC 917 (Admin)

Date – 31st March 2015

Keywords – Conviction, s2, Guilty plea, Crown Court

Overview – Judicial Review of a decision of the Crown Court to not state a case on application to appeal out of time from a guilty plea dismissed.

Summary – K was a Somali who arrived in the UK on 19th February 2006 without a passport (stating that it had been handed to an agent). He was charged with a s2 offence, pleaded guilty in the magistrates’ court and was sentenced to 3 months. 

His circumstances were that he had left Somalia by lorry to Eritrea on 3rd February 2006 as members of his family had been killed. He flew to the UK with several transfers, having left Eritrea on 17th February. An agent gave him a passport at each stop, which was handed back. The letter to K afterwards stated “You confirmed that you never applied for or held your own passport“. 

Subsequently he was recognised as a refugee and, after being refused British Citizenship due to this conviction, received advice that he had a defence, leading to an application to the Crown Court to appeal out of time.

The application was refused as “Any application to vacate the guilty plea would have to be based on advice given seven years ago, and it is, in my judgment, far too late to investigate that properly“. There then followed an application to state a case, which was also refused.

The High Court refused the application for a Judicial Review of that decision. They set out the following seven factors to be considered in an application such as this :

i) The length of time of the delay;

ii) The reasons for the delay;

iii) The apparent strength of the underlying case on its merits;

iv) Whether a substantial injustice may have resulted;

v) Whether the conviction in question is now spent;

vi) In an equivocal plea case, the ability to investigate effectively what occurred at the time of the guilty plea;

vii) The practicalities after the elapse of time of there being an effective retrial. In ordinary cases there is a rehearing on an appeal to the Crown Court; in equivocal plea cases there is the possibility of a trial in the Magistrates’ Court. The interests of justice encompass not only those of the accused but also of the public in having an effective trial.

It was specifically stated that even if there were strong prospects of success, then this would not be sufficient, of itself, to mean that an application out of time should be allowed. The solicitor’s firm was no longer trading and neither the Court file nor the solicitors file were available. In light of that, it was held that there was no evidence of an unequivocal plea. If this were to be investigated, then it should be by the CCRC.


(1) s2 – it is unclear whether the Court properly set out the nature of the defences to s2 (in fairness, this is because the judgment in Mohammed is equally unclear). The nature of the defence is set out at paras 6 and 16. Specifically, it is stated that “the reference in section 2(4)(c) encompassed both a genuine and a false immigration document” which is incorrect. The ‘document’ in s2(4)(c) is a genuine immigration document.

(2)  Equivocal Plea – We don’t know which aspects of K’s history were accepted, but in light of the fact that he was recognised as a refugee and that his account is, in essence, an everyday account of life in Somalia at the time, it can be assumed that it was, or would be, accepted.

Equally, there is nothing in the solicitor’s letter that strikes as odd. The critical line is at the end – “You confirmed that you never applied for or held your own passport“. Again, this would accord with the situation prevailing in Somalia at the time. Putting the two together however, this of itself (if told to the Court) would be sufficient to raise the question of whether the plea was equivocal. 

(2) CCRC – it is noted by the Court and Crown that K could make an application to the CCRC. It is likely that this will be met with more sympathy than the Crown Court. K would probably have been best off applying there before the Crown Court (and certainly before the Administrative Court). 

Judges – Burnett LJ, Lewis J

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Citation – [2015] EWCA Crim 275 (unreported / not on BAILII)

Date – 12th February 2015

Keywords – Conviction, s31, Guilty plea

Overview – Appeal against conviction following a guilty plea refused as wrong advice not given

Summary – G was an Iranian woman married to a man with dual British and Iranian nationality. He had been accused of being a British spy and she was arrested and detained. As a result, she used an agent to come to the UK, leaving Iran overgroud to Turkey and by ferry to Copenhagen where she stayed two nights before flying to the UK on 22nd August 2011. G claimed asylum straight away.

The history in Court was not entirely clear, but G pleaded guilty on 11th November.

Crucially, she was advised of the s31 defence on three occasions and on 3rd November “she is thinking of pleading guilty so she can get out of prison quicker and is therefore undecided [as to plea]”. On the 11th it was recorded that “she just wishes to get it over and done with, I have advised her of the defence again and she wishes to plead guilty”. She signed an endorsement to this.

She was later granted asylum.

The Court held that the “guilty plea was intentionally and freely given, it was unequivocal following proper advice and cannot be said to be a nullity”.


(1) On the law, the decision cannot be faulted. It is clear that Ms Ghorbani was fully and properly advised, which effectively scuppered any chance of appeal. The attempt to draw an analogy with Victims of Trafficking was always doomed to fail.

(2) Criminal justice, we are told, “is not a game … It is a search for truth“. If so, and we wish to convict the guilty and acquit the innocent, then how should the Court approach an appeal such as this one? Here, on the facts we can say that a defence would ‘quite probably have succeeded‘, in other words, it is more likely than not that Ms Ghorbani is innocent, and yet she remains convicted because of a tactical decision. Is this consistent with the overriding objective?

It is a very difficult area. A guilty plea should be conclusive evidence of guilt, and the Court of Appeal are understandably extremely reluctant to let anyone appeal against a conviction following a plea of guilty. This issue is wider than immigration offences, when can a Court leave convicted someone about whom there is serious doubts about their guilt?

(3) As is often the case, the Court appears to elide the two possibile ways a guilty plea can be appealed (a nullity versus a more general ‘interest of justice’ test). It would not have made a difference.

Judges – Sharp LJ, Goss J, HHJ Kramer QC


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Citation – [2014] EWCA Crim 2933 (unreported / not on BAILII)

Date – 17th December 2014

Keywords – Conviction, s31, CCRC

Overview – Appeal against conviction following a guilty plea allowed.

Summary – S was an Iranian Christian apostate who left Iran and came to the UK via Turkey, Tanzania and Zambia. He flew to the UK on a false passport, arriving on 5th or 6th January 2012. Thereafter he bought a ticket to Canada (his original destination) and was arrested on 12th January 2012 whilst trying to leave the UK.

He was charged with using a false passport and pleaded guilty on 24th January, being sentenced to 12 months. He claimed asylum on 4th February.

He “was never properly or comprehensively advised about the potential defence which might be available to him” under s31. On a CCRC Reference, the CPS did not oppose the appeal. The immigration appeal was allowed in the First Tier Tribunal and it was held that it was not reasonable for S to have claimed asylum in the above three countries.

Comment – There is nothing new in the judgment by way of law, but it is good confirmation of how far things have moved since before Asfaw. Here, the Court said “It is important to appreciate that the purpose of section 31 is to embed in domestic law the protections provided by Article 31 of the Refugee Convention“, which is absolutely correct, but it is good to see this recognised.

Also, the Court were refreshingly quick to not only allow the appeal, but to say that they were “entirely satisfied that the defence under section 31 would have succeeded“. Considering the journey, the amount of time in the UK and the delay in claiming asylum, this reinforces how wide the s31 defence is.

Judges – Macur LJ, Blake & Dove JJ

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