England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Kingston Upon Thames Crown Court
His Honour Judge Fergus Mitchell

		Royal Courts of Justice Strand. London. WC2A 2LL
		12/08/2005

Lord Justice Rix:

1. This is the judgment of the court.
2. The appellant, Ahmed Benabbas, appeals against that element of his sentence which consists in the judge's recommendation that he be deported. The submissions on his behalf raise an issue of principle.
3. On 16 March 2005 in the Crown Court at Kingston upon Thames, before His Honour Judge Behar, the appellant pleaded guilty to a single count of using a false instrument, namely a stolen and forged French passport, contrary to section 3 of the Forgery and Counterfeiting Act 1981. On 4 April 2005 he was sentenced by His Honour Judge Fergus Mitchell to seven months imprisonment: the judge also recommended him for deportation. He appeals only against the recommendation, with the leave of the single judge ..
4. The passport had been stolen, as part of a bulk theft of unissued French passports, in an armed robbery in Marseille on 22 July 2003. Following on their loss, the passports were cancelled by the French authorities. One of these passports was fraudulently completed in the name of the appellant. On 3 December 2004 the appellant, having come to this country, attempted to use that passport, among other documents, to support his application for a permanent National Insurance number. On 18 January 2005 he attended again at the offices of the Department for Work and Pensions in Tooting Road, London, and was arrested. Later that day the police attended at a ground floor flat in Brayards Road, London SEI5, which the appellant had identified as his home. The police used his key to gain entry and discovered nothing in the flat save for a sofa and a chest of drawers. There were no signs of anyone living at that address.
5. The appellant had signed an application form on 3 December 2004. In that form he gave his name as Ahmed Benabbas and his date of birth as 8 August 1977, as recorded on the passport. He said that he had been born in Paris and was of French nationality. He gave his address at Brayards Road, saying that he had been living there from 10 February 2004. He said that he had been living at a previous address in London since 15 August 2003, the day he gave for his arrival in the UK. He said that he had come here to work. He had been working as a catering assistant at a college since 15 September 2003. He provided recent pay slips, showing that he had earned nearly £8,000 gross (and had paid tax and NI). He provided a home (land line) telephone number, and a BT telephone bill.
6. The appellant was interviewed on the evening of his arrest. He now said that he had been born in Algeria and was an Algerian. When asked why he had left Algeria, he simply said that he had his reasons. He had travelled to France on his Algerian passport and had bought the forged French passport in France for £800. He no longer had his Algerian passport, which he had given to his friends to take back to Algeria. He arrived in the UK by ferry, but he could not remember at which port. He did not show anyone his French passport. The following is an extract concerning the address that he had given as his home:

"Q. So what is in there?

A. No, it's empty.

Q. Where are your possessions?

A. What do you mean my possessions?

Q. Have you got any, a change of clothes?

A. I haven't got, no.

Q. Where's your telephone?

A. Which telephone?

Q. The telephone, if I show you this.

A. This one, you mean this number.

Q. This is a BT bill.

A. Yeah ...

Q. In order to obtain a bill, you must have a telephone.

A. Yes, of course I do.

Q. Where's your phone?

A. Sorry, I have cancelled it.

Q. Why?

A. Because I couldn't pay it ...

Q. What do you sleep on at your home?

A. Sorry, I can't understand these questions, sorry ...

Q. I'm asking you what do you sleep on at night? .. 00 you have a bed?

A. Yes.

Q. Well where is your bed in your flat?

A. I have just bought it. I mean sold it, 'cos I don't need it.

Q. When did you sell it?

A. Sorry?

Q. When did you sell your bed?

A. A few weeks ago."

7. The Crown's case was that this was a sham address. There was no pre-sentence report, and none was requested. He was apparently 27 and of previous good character.
8. In his sentencing remarks the judge gave him full credit for his early plea of guilty, but said that such forged passports were cropping up all over the place and were undermining the good order of the country. Such use represented a fundamental threat, which is why he was making a recommendation for deportation. He pointed out that the appellant had not sought political asylum in this country (or in France), but he also acknowledged that an actual decision on deportation was not for him but for the Home Secretary or the IAT. He bore in mind the various decisions that counsel had cited to him, as well as the question of proportionality.
9. On this appeal, Miss Pamela Rose developed those submissions to this court. She relied in particular on R v. Nazari [1980] I WLR 1366 (1980) 71 Cr App R 87, for the principle that a recommendation must be justified by the potential detriment to the country of the continued presence of the offender. Unless there is something to constitute such a detriment in the offender's background, or in the seriousness of the instant offence, or in his propensity to offend in the future, then a recommendation is wrong in principle. She relied on a number of cases which applied the principle, culminating in the recent case of R v. Bei Bei Wang [2005] EWCA Crim 293 (unreported, 3 February 2005). She submitted that the detriment to justify a recommendation must be personal to the offender, and that his immigration status was wholly irrelevant. It did not matter therefore that he had gained entry to the UK by illegal means or that the instant offence involved the fraudulent use of a forged passport.
10. As for the personal history of the appellant, in her written advice Miss Rose described it as follows. She said that he had qualified as a lawyer in Algeria in 2001; that he had been beaten and kidnapped in 2002 and 2003 and threatened with death if he took his oath as a lawyer or persisted in politics; that as a non Arab Algerian he was subject to discrimination and persecution; that he had left Algeria because he was a member of a political party called FFS or Frant de Force Socialist; that he had not claimed asylum on coming to this country because he had been too frightened, but that he had done so since being arrested. In her oral submissions, however, Miss Rose accepted that such matters are for the immigration and asylum authorities and not for this court. They are in any event untested.
11. She submitted, however, that it was to the appellant's credit that since he had been in this country he had been employed and paid tax, which showed that he was hard working and prepared to contribute to society.

The authorities

12. The power to make a recommendation for deportation is contained in sections 3(6) and 6 of the Immigration Act 1971, which provide:

"3.-(6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall be liable to deportation from the United Kingdom if, after he has attained the age of 17 he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.

6.-(1) Where under section 3(6) above a person convicted of an offence is liable to deportation on the recommendation of a court, he may be recommended for deportation by any court having power to sentence him for the offence unless the court commits him to be sentenced or further dealt with by another

court." .

13. There is a specific exception under section 7(1) of the same Act for citizens of the Commonwealth or of the Republic of Ireland who were such citizens at the coming into force of that Act and had been ordinarily resident in the UK for the previous five years.
14. Moreover, citizens of member states of the European Union are covered by article 39 (formerly article 48) of Directive 64/221 (the "Directive") which restricts the authority of member states to exclude nationals of other states who are workers or spouses or dependants of workers. The leading case on article 39 (48) in the European Court of Justice is R v. Bouchereau [1978] QB 732, 66 Cr App Rep 202, which arose in the context of a second conviction for the possession of drugs. Article 1 of the Directive requires freedom of movement such that nationals of member states have a right to enter and reside freely for the purpose of work under the same conditions as nationals of the host state. By article 3.ofthe Directive "Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the person concerned" and "Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures ... ". The ECJ answered a question whether previous convictions were relevant only in so far as they manifested a present or future propensity by allowing that their relevance went further than that. They said:

"28. The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.

29. Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.

30. It is for the authorities and, where appropriate, for the national courts, to consider that question in the light of the particular legal position of persons subject to Community law and of the fundamental nature of the principle of the free movement of persons."

15. A third question raised the scope of "public policy". The ECJ said (ibid):

"35. In so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national authority to the concept of public policy presupposes, in any event, the existence,. in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society."

16. The appellant is not of course an EU national, but we refer to Bouchereau because English authority (see below) has said that the "detriment" principle in English law works on the same basis. If it does, it is as well to bear in mind that EU nationals have a right of freedom of movement throughout the member states, which does not apply to non EU nationals.
17. As for the English cases, the earliest appears to be an unreported decision in R v. Uddin (27 July 1971, extracted in Current Sentencing Practice at KI-5DOI). The defendant there gained entry into the UK from Pakistan in 1967 with a forged passport, obtained employment, and some years later came to be sentenced for using it. He was an excellent and conscientious worker, had no previous convictions, and his record here had been "admirable in every way". This court, however, upheld his recommendation for deportation. Lawton J said: "Those who come here by fraudulent means must expect to be deported."
18. In R v. Akan (1972) 56 Cr App R 716 a mother of three children, the last of whom had been born in this country and was a British subject, pleaded guilty to overstaying her entry permit. She was conditionally discharged and recommended for deportation. This court said that it was a matter for the Secretary of State whether she was deported but that the recommendation ought not to have been made. The sentencing judge had wrongly thought that his discretion was fettered by the fact that the defendant was here unlawfully.
19. In R v. Kandhari (unreported, 24 April 1979) the defendant pleaded guilty to common assault and was sentenced to three months imprisonment, a term which was suspended, and recommended for deportation on the ground that he had overstayed his entry permit. Bridge LJ, giving the judgment of this court, said that the question of such a recommendation should be decided quite independently of his status under the Immigration Act. He said:

"These are matters for the Home Secretary, to be decided quite independently of any recommendation for deportation following conviction for a criminal offence. In the view of this Court, the question whether to recommend deportation following conviction for a criminal offence is one that should be decided quite independently of the status of the particular offender before the court in relation to his position under the Immigration Act. It is immaterial whether he has been in the country for a short or a long time. His history, particularly his criminal history, if he has one, and the gravity of the offence are the principal matters which should influence the court in exercising its discretion ... "

The recommendation was quashed.

20. R v. Thoseby and Krawczyk (1979) 1 Cr App R (S) 280 concerned two Polish defendants, man and wife, convicted of conspiring to facilitate the entry into the UK of illegal immigrants. In order to obtain their own entry, they had divorced, come separately to the UK, and here married, in the husband's case his wife's sister, a resident of the UK, and in the wife's case her sister's partner, a British subject. These were purely marriages of convenience, for all four immediately resumed their previous relationships. In due course, the wife obtained indefinite leave to remain in the UK on the basis of her fictitious marriage to her sister's partner, but the whole matter came to light when the husband attempted a similar application. They were sentenced to three months' imprisonment, which was suspended, and recommended for deportation. This court quashed the recommendation. It was referred to Uddin, Akan, and Kandhari. It was told that the consequences of return to Poland for the defendants would be very serious, since they had also broken Polish law which restricted childless married couples from leaving the country: as many as eight years imprisonment was referred to. The court concluded (at 282):

"We have come to the conclusion that, although the offences here were concerned with immigration into this country, they were committed by persons of perfectly good character. All the matters which are relevant to those offences are within the knowledge of the Home Secretary, and we have come to the conclusion that this is a case where the matter should be left solely 0 the discretion of the Home Secretary without any recommendation from the courts."

21. R v. Nazari [1980] 1 WLR 1366, (1980) 71 Cr App R 87 concerned four separate cases which were dealt with together for the purpose of reviewing the applicable principles against a background of concern that previous decisions had been conflicting. Nazari himself had pleaded guilty to being knowingly concerned in the importation of drugs and had been sentenced to four years' imprisonment. Another defendant received five years for the manslaughter of his wife; a third case (Fernandez) involved a Spanish defendant who had received 18 months for conspiracy to rob and aggravated burglary; and a fourth (Anyanwu) was fined for overstaying. All had been recommended for deportation. The notice of appeal in the last case had been abandoned, so that the court did not have to rule on a defendant who was present in this country illegally.
22. Nazari said that unpleasant consequences were likely to follow for him if deported back to Iran; but the court said that it could not act on the kind of evidence put before it. The Spanish burglar had a Spanish wife and children born in this country; he was generally a hard-working man with some previous convictions. The man who had killed his wife said he wanted to go back to his country anyway.
23. The court set out the following guidelines, stressing that they were guidelines, "not rigid rules" (at 94/96):

"First, the Court must consider ... whether the accused's continued presence in the United Kingdom is to its detriment. This country has no use for the criminals of other nationalities, particularly if they have committed serious crimes or have long criminal records. That is self-evident. The more serious the crime and the longer the record the more obvious it is that there should be an order recommending deportation. On the other hand, a minor offence would not merit an order recommending deportation ...

Secondly, the Courts are not concerned with the political systems which operate in other countries. They may be harsh; they may be soft; they may be oppressive; they may be the quintessence of democracy. The Court has no knowledge of such matters over and above that which is common knowledge; and that may be wrong. In our judgment it would be undesirable for this Court or any other Court to express views about regimes which exist outside the United Kingdom of Great Britain and Northern Ireland. It is for the Home Secretary to decide in each case whether an offender's return to his country of origin would have consequences which would make his compulsory return unduly harsh ...

The next matter to which we invite attention by way of guidelines is the effect that an order recommending deportation will have upon others who are not before the Court and who are innocent persons. The Court and all other Courts would have no wish to break up families or impose hardship on innocent people. The case of Fernandez illustrates this very clearly indeed ...

We wish to state clearly and firmly that all that a Court does when it makes a recommendation for deportation is to indicate to the Secretary of State that in the opinion of the Court it is to the detriment of this country that the accused should remain here. The final decision is for the Secretary of State ... "

24. The recommendation was quashed in the case of the Spanish burglar, Fernandez, but otherwise the appeals or applications failed. Interestingly for the purposes of the present case, the Court said in its closing paragraph that if the appeal of the overstaying defendant (Anyanwu) had not been abandoned-

"we should have upheld the recommendation because he was proven to have been an illegal immigrant. In such cases a recommendation should normally be made."

25. R v. David (1980) 2 Cr App R (S) 362 concerned a defendant convicted of a theft of a passport which he had found in a hotel bedroom and kept, but had not used. He was sentenced to six months' imprisonment and recommended for deportation. He was 51 and had no previous conviction since 1972. He was originally born in New Zealand, but had also lived in South Africa and France.' His previous convictions had by and large been for fraud. In 1978 he followed his wife and daughter to the UK, where the latter was at school. This court quashed the recommendation for deportation, saying that the defendant was unlikely to commit further offences of the type he had used at one time to commit and that it would have been a serious thing for the daughter to have to leave her school.
26. Miller v. Lenton (1981) 3 Cr App R (S) 171 is a decision of the divisional court arising out of a magistrates' court's recommendation (with an appeal to the Crown Court which was dismissed) for the deportation of a defendant who had been convicted of assault on his fiancée causing her actual bodily harm. She had forgiven him and they wished to marry. He was fined £100. He was a visitor from Canada who had overstayed his permit, and was of previous good character save for one offence in Canada for which he had been placed on probation. Plainly his conviction in itself did not merit a recommendation for deportation. The court was referred to Nazari, but not, it would seem, for its final paragraph relating to the case of Anyanwu, for Griffiths LJ said (at 17213):

"This Court finds it difficult to understand how, having had the decision of the Court of Appeal (Criminal Division) drawn to their attention, the Crown Court nevertheless felt it was appropriate to make an order for deportation. We feel it is possible that they were tempted to take into consideration an immaterial matter which should not have weighed with them ... "

and he then referred to the matter of overstaying, and added -

"Their task was to decide whether it was right to deport him because he had committed this one offence. It clearly was not right to do so and it was not a proper exercise of their discretion in accordance with the guidelines set out in Nazari's case to make the order."

27. In R v. Altawel (1981) 3 Cr App R (S) 281 the defendant had been living in the UK since 1971. He was convicted of obtaining a student's grant by deception and was sentenced to nine months' imprisonment and recommended for deportation. He was an Iraqi, married to an English woman but separated from her. He had no previous convictions. The court had no regard to the defendant's fear that if returned to Iraq he would be sent to the battlefront, for, as it said, political matters were for the Home Secretary. The sentencing judge gave as his reason for recommending deportation that the country was entitled to be protected against the abuse of its generous grants for education. This court however said that the real question was whether the defendant's continued presence in this country would be to its detriment. After anxious consideration, it concluded that it would not and quashed the recommendation.
28. R v. Escauriaza (1987) Cr App R (S) 542 concerned a Spanish citizen who pleaded guilty to seven counts involving theft, deception, handling, burglary and possession of a controlled drug. He had come here to be with his English girlfriend. He married her while on bail. She gave birth to their child while he was in custody. He was sentenced to 12 months' imprisonment and recommended for deportation. It was assumed that the Directive applied to him. The court was referred inter alia to Nazari and Bouchereau. The recommendation was upheld on appeal. The court said (at 547):

"Thus under EEC law a valid recommendation for deportation can only be made if at least two conditions are fulfilled: first, that there exists a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society - in our judgment, that is simply a somewhat fuller way of saying that the appellant's continued presence in the United Kingdom would be to its detriment and secondly, that the reasons are given to the appellant for making the recommendation ...

It follows from all this that if article 48 of the Treaty of Rome applies to the appellant, then the learned judge in complying with the requirements of English law and practice, met also the requirements of EEC law."

29. R v. Cravioto (1990) 12 Cr App R (S) 71 was another case where European law was assumed to apply. The defendant was convicted of the theft of jewellery and the forgery of some travellers' cheques, was sentenced to 12 months' imprisonment and recommended for deportation. He had been born in Spain, but had been living in the UK since 1966. He was married to a British woman and had three children, of which the third was still a minor. His wife's parents were also living in England. He had two previous convictions for offences of dishonesty of some seriousness. The court referred to Nazari, and also to the principles of European law as discussed in R v. Spura (1988) 10 Cr App R (S) 376 for the proposition that the Nazari detriment test showed that "European law really mirrors English law" (at 74). The court concluded that the judge had a difficult balancing act to perform but fell on the wrong side of the line: the recommendation was quashed.
30. In R v. Nunu (1991) 12 Cr App R (S) 752 the defendant pleaded guilty to two counts of theft and one of handling and was sentenced to 200 hours community sentence and was recommended for deportation. He had no previous convictions. At the time of sentence he had applied to remain in this country as a student, had been refused, and was appealing against that decision. The recommendation had been made on that basis. This court, in quashing the recommendation, referred to what Bridge LJ had said in Kandhari.
31. R v. Okelola (1992) 13 Cr App R (S) 560 concerned a Nigerian citizen who had lived in England since 1984, at first as a student, and had married a United Kingdom resident in 1985. They had two children. He made three false applications for a passport, supported by false documentation. He was sentenced to 12 months' imprisonment and recommended for deportation. This was despite the fact that in April 1990 the Home Office had informed him that, particularly in view of his marriage, the Secretary of State had decided to withdraw his previous decision to deport him. This court referred to Kandhari, Nunu and Nazari and said (at 562):

"In the judgment of this Court, although the offences of which this appellant was found guilty demonstrate, it is true, a reprehensible lack of honesty and principle on his part, especially bearing in mind that he professes to be a minister of religion, none the less he has no previous history of offending apart from the minor matter to which reference has been made, nor can it be said that by reason of the offences of which he was found guilty his continued presence here would be to this country's detriment."

The recommendation was quashed.

32. In R v. Bali (2001) 2 Cr App R (S) 104 the defendant was a young Kosovan of previous good character who had pleaded guilty to violent disorder in which a victim had been stabbed on a bus. He was sentenced to a six months detention and training order and recommended for deportation. The DTO was reduced on appeal to one of four months, but this court refused to interfere with the recommendation. It was submitted that account should be taken of the personal difficulties the defendant would suffer if he were returned to Kosovo, but this court applied the approach found in Nazari and elsewhere that such matters are for the Secretary of State and not for the courts which lack the machinery for investigating the assertions put forward on behalf of appellants.

33. Finally, in the recent case of R v. Bei Bei Wang [2005] EWCA Crim 293 (unreported, 3 February 2005) the defendant was a young female Chinese asylum seeker who entered the United Kingdom without a passport and promptly claimed asylum. She pleaded guilty to the offence of entering without a passport and was sentenced to ten months' detention in a young offender institution and recommended for deportation. The offence concerned was created by section 2(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, and was designed, as Home Office guidance suggests, primarily to discourage people from destroying evidence of their identity, age or nationality in an attempt to increase their chances of being able to remain in the UK. This court reminded itself, however, that asylum seekers entering this country are no longer prosecuted for being. in possession of allegedly false documents, since article 31 (1) of the Convention and Protocol Relating to the Status of Refugees imposes a prohibition on the imposition of penalties against illegal entrants who come directly from a place of persecution, present themselves without delay to the authorities and show good cause for their illegal entry or presence: see R v. Uxbridge Magistrates' Courts ex parte Adimi [2001] QB 667.

33. Ms Wang's appeal was against both elements of her sentence. As for the sentence of detention, this court found no assistance in the line of authority that relates to the use of false passports when asylum is not in issue, remarking that in such cases a custodial sentence is inevitable -

"not least because these offences have the real potential to undermine the whole system of immigration control (per May LJ in Nasir Ali [2002] 2 Cr App R (S) 32 at p 115). These offences are prevalent and usually the sentence imposed should be intended to have a deterrent effect on others who may be minded to commit an offence of this kind as part of an attempt to enter the United Kingdom. Although credit should be accorded for a guilty plea and personal mitigation, the dominant consideration is the public interest requirement of imposing a deterrent sentence in these circumstances" (at para 10).

The court therefore substituted a sentence of two months' custody.

34. As for the recommendation for deportation, the court referred to Nazari and Kandhari and concluded:

"16. Accordingly, if the appellant's immigration position is ignored, given she is a young woman of good character, in our view the commission of this sole criminal offence did not provide a sustainable basis for the judge to conclude that her continued presence in this country is to its detriment. In our view there was no proper basis for recommending her deportation, and we quash that part of the sentence."

Discussion

35. We have reviewed the authorities put before us by Miss Rose, as well as some others to which they have in turn led, so that we may consider in the round her submission that the sentencing judge in this case failed to have regard to the Nazari principle of paying attention solely to the question whether this appellant's continued presence here is a potential detriment to this country. She says that that question is entirely personal to the appellant and his conduct, that his immigration status is entirely irrelevant, and that a fortiori the immigration status of other similar actual or potential offenders is irrelevant. As for the appellant's conduct, she points out that he has not been charged with using his French passport to obtain entry, and that, as a qualified lawyer without previous convictions, who has been employed since his arrival here and who has an asylum claim which will be dealt with by the authorities in due course, he represents no detriment or threat to the country.
36. The statutory discretion is in itself unfettered, but, answering the purpose of its context, the Nazari approach of looking to the detriment of the defendant's presence in this country is well established as providing the rationality which informs the discretion. Where the defendant's presence in this country is lawful and regular, the Nazari approach involves a relatively straightforward exercise of balancing the aggravation of the defendant's wrongdoing, present, past and potential against the mitigation which he can pray in aid" which includes the interests of his family. That balance may on occasions be a difficult one to find (see Altawel, Cravioto), but the test and the elements in it are plain, and, subject to the interests of the family, personal to the defendant (see Nazari, David, Altawel, Bali). We say personal to the defendant, but of course the detriment still has to be judged by reference to the public interest and the requirements of public policy. As the Eel put it in Bouchereau at para 29, what the courts are concerned with is "evidence of personal conduct constituting a present threat to the requirements of public policy".
37. In any event, the court generally does not embark and is in no position to embark on any assessment of what would happen to the defendant on return to his country of origin (Nazari, Altawel, Bali). Whether a recommendation is made or not, those matters are ultimately for the Secretary of State. It is suggested in Archbold, 2005, at para 5-922, that on this point Thoseby and Krawczyk reflects an apparently contrary view. We do not agree; and in any event, that case precedes Nazari and the consistent line that has been taken on this point since.
38. Where, however, the defendant's presence in the United Kingdom is illegal or irregular, the position can be more complicated. This is partly because the illegality or irregularity can vary from the case of a lawful entrant who overstays his permit to the unlawful entrant who gains entry by fraudulent means, but also because the illegality or irregularity can either be the essence of the offence for which the defendant is sentenced (Uddin, Akan, Nazari (the case of Anyanwu), Bei Bei Wang) or can be entirely irrelevant to it (Kandhari, Miller v. Lenton, Nunu, Okelola).
39. In the latter class of case, the general principle has been that such incidental illegality or irregularity in the status of the defendant is irrelevant, as Bridge LJ stated it to be in Kandhari. In our judgment this is not because of the Nazari detriment principle, since it will be recalled that in Nazari itself this court said, of the case of Anyanwu, an overstayer, that if his appeal had not been abandoned, it would have been dismissed. This appears to have been overlooked. It is because, as it seems to us, the defendant is to be sentenced for the offence of which he has been convicted and not for his incidental status under the Immigration Act. Even so, we would have thought that the defendant's status, if indeed it was clear, was not entirely irrelevant: it is part of the defendant's personal conduct which, as a matter of the public interest, could be taken into account as part of the balancing exercise. What the cases of Kandhari, Miller v. Lenton, Nunu and Okelola appear rather to be concerned with is the rejection of the idea, focused on by the sentencing court in that category of case, that a recommendation for deportation could properly be made simply because of the illegality or irregularity of status and not as a result of a reasoned balance based on the detriment approach.
40. Whether that view of that class of case is correct or not, however, we do not think that the Kandhari approach applies at all to the category where the essential gravamen of the offence for which the defendant is being sentenced is itself an abuse of this country's immigration laws. While we would be reluctant ourselves to go as far as Lawton LJ did in Nazar; in suggesting that a recommendation for deportation should be automatic in the case of every overstayer - and the case of Akan supports us in that view - we do think that the public interest in preventing the fraudulent use of passports to gain entry or support residence is of considerable importance and deserves protection. Moreover, in such a case the issue of Nazari detriment is intimately bound up with the protection of public order afforded by confidence in a system of passports. We think that the sentencing judge was correct to say that the use of stolen and forged passports undermine the good order of society. In our judgment, such a view is consistent with what the ECJ has said in Bouchereau, which subsequent English authorities have said to be the same as the detriment principle (see Escauriaza, Cravioto).
41. We therefore think that Current Sentencing Practice is correct to distinguish at K1-5D and K1-5E between the case of a person who enters the United Kingdom by fraudulent means and the case of a person who is in the country unlawfully and is convicted of an offence unconnected with his status and the circumstances in which he entered the country. It may be that Thoseby and Krawczyk lies· across this distinction, but that was an unusual case; it precedes Nazari; and ultimately these are cases concerning the exercise of a discretion which cannot run in tram lines.
42. In this connection, the recent case of Bei Bei Wang is instructive. That case differed from the present in at least two respects. First, the defendant there was not charged with use of a forged passport: her offence was that of entering without a passport. Secondly, she entered solely for the purpose of claiming asylum, which she did immediately. That was the context in which Fulford J there applied the Kandharitest. In our judgment, for the reasons set out above, the balance of authority as well as the reason of the thing suggest that the Kandhari approach is inappropriate in connection with the offence of entering without a passport, but may well, for entirely different reasons, nevertheless be necessary in a case where the entrant immediately claims asylum. In such a situation, the claim for asylum can only be assessed by the Secretary of State, and he is probably best left to consider it without any possible complication arising from a recommendation for deportation.
43. Moreover, in considering the length of custodial sentence, Fulford J contrasted that defendant's case with the case of use of forged documents in support of fraudulent attempts to gain entry into the United Kingdom, a fortiori when unconnected with a genuine asylum claim, and pointed out that such an offence had the real potential to undermine the whole system of immigration control and that it was in the public interest to impose a deterrent sentence in such circumstances.
44. The present case, however, is entirely different from that of Be; Be; Wang, although it is similar to the contrasted case of the fraudulent entrant there referred to. It is true that the appellant was not charged with use of his forged passport to gain entry: but it is overwhelmingly likely that he did so use it, or at least that he presented himself at the ED citizen entry channel thereby representing that he was a holder of a passport issued by a member state. It was no doubt to facilitate such an entry that (he said) he gave his Algerian passport to his associates in France to take back to Algeria. In any event, he used his forged French passport to apply for a National Insurance number. He must be assumed not to have known that his French passport was stolen - a charge of handling was not pursued - but the fact that he acquired it so soon after it was stolen in an armed robbery of unissued French passports in bulk demonstrates the scale of the problem. Although he has not been in any trouble since arriving in England and he has been in employment, and those matters are to his credit, his failure to disclose his true address is a serious matter. In essence, as a result of the suppression of his Algerian passport and of his true address in London, nothing at all is known about him beyond his employment.
45. In our judgment, the judge was right therefore to say that the appellant's use of a forged passport undermined the good order of society and constituted the appellant a threat. In Nazar; terms, his continued presence would be a detriment to this country. His appeal is therefore dismissed.