England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		6 March 2007

1. MR JUSTICE TUGENDHAT: On 22nd December 2006 at the Crown Court at Canterbury before His Honour Judge Nash, the appellant, who is now aged 34, pleaded guilty to possession of a false identity document contrary to section 25(1)(a) of the Identity Cards Act 2006. She was sentenced to 7 months' imprisonment. The judge made a recommendation that she be deported. It is only against that part of the sentence that the appellant appeals.
2. The facts are straightforward. On 19th July 2006 the appellant went to an employment agency in Thanet to apply to go onto the agency's book. As part of the procedure the agency required her to provide proof of identification. She produced a Nigerian passport in the name of Silas. The passport had an endorsement which stated that the holder had indefinite leave to remain in this country. Following the interview, the agency decided to put her on their books and she was given employment during July and August.
3. On 29th August immigration officers at the agency met the appellant. She gave her true identity and date of birth. Checks were carried out by the Home Office, which revealed she was not known to them. She was arrested on grounds of illegal entry and in interview she admitted she had last entered this country on 5th April 2003. She admitted that she had used other false documents to do so.
4. Following her arrest, her home address was searched and a passport in the same of Silas was recovered. It was examined and found to be fake in a number of respects. She was arrested for this offence and, when interviewed, said she had purchased the passport for £300 from a person in London. She said she needed the passport to gain employment, having been in this country illegally for three years.
5. In his sentencing remarks the judge made clear that he was sentencing the appellant for using false documents to get employment; he was not sentencing her for having used false documents upon entry to the United Kingdom in 2003. He noted that using false documents to obtain employment has the result that the benefit for which deductions are made from wages are also obtained by the person who uses the false documents.
6. The judge noted that, given her status as an illegal immigrant and other features personal to her, the appellant was a vulnerable person. As to the recommendation for deportation, the judge said no more than that he saw no reason for not recommending deportation. In explaining the custodial sentence of seven months, the judge said that using false passports and other documents to get employment is a very serious offence.
7. In his submissions, both written and oral before us, Mr Thomas referred to the authorities which state that a judge should give reasons for a recommendation for deportation. In Carmona [2006] EWCA Crim 508; [2006] 1 WLR 2264, in paragraph 12, giving the judgment of the court Stanley Burnton J said this:

i. "So far as procedure is concerned, if the offender's advocate does not address the question of a recommendation for deportation, and the sentencing judge is considering making one, he should warn the advocate that he is considering making a recommendation for deportation in order for the advocate to be able to make such submissions and to put before the court such material as he thinks fit: R v Nazari. The judge must give reasons for making a recommendation for deportation, which need not be lengthy but must show that the material issues have been addressed: R v Rodney [1996] 12 Cr App R (S) 230. A failure to give adequate or any reasons will not necessarily lead to its being quashed, but will require this court to reconsider the recommendation: R v Bozat [1997] 1 Cr App R (S) 270."

8. Mr Thomas then referred to the cases of Nazari and Carmona in support of the proposition that the key question is whether the offence is serious enough to merit deportation. At paragraph 6(iii) of the judgment in Carmona Stanley Burnton J said this:

i. "The question for the court is whether the offence and other material before the court leads to the conclusion that continued presence of the offender is detrimental to this country."

9. Further on he said:

i. "We were told that the Home Secretary applies an unpublished rule of thumb where a recommendation for deportation has been made. He will not normally order deportation unless the offender has received a sentence of at least one year's imprisonment if he is not an EU national, and of at least two years if he is an EU national. This should not in our judgment prevent sentencing judges making a recommendation for deportation when passing a lower sentence, provided that they are satisfied that the continued presence of the offender is against the public interest; but they should be cautious in doing so in such cases."

10. Mr Thomas also referred us to R v Benabbas [2005] EWCA Crim 2113; [2006] 1 Cr App R (S) 94. That case was decided a few months earlier than Carmona, but is not apparently one of the cases which was cited to the court in Carmona. A significant difference between Carmona and Benabbas is that in Carmona the appellant was a national of Portugal (which is an EU state) whose immigration status was not in question. In Benabbas the appellant was Algerian and his immigration status was quite different, in that he appeared to have entered this country illegally. He had a stolen and forged French passport which he had used to support an application for a national insurance number. He was arrested in attempting to make that application. Rix LJ, in giving the judgment of the court, at paragraph 45 said:

i. "The present case, however, is entirely different from that of Bei Bei 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 EU citizen entry channel thereby representing that he was a holder of a passport issued by a member state."

11. The significance of this difference in the status of the appellants in Carmona and Benabbas is pointed out by Rix LJ in his review of the authorities in that case. After referring to the test to which the case of Nazari is best known (as adopted in Carmona) Rix LJ noted that there was a passage at the end of the judgment in Nazari which is less well known. Rix LJ set it out at paragraph 24:

i. "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:

ii. '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.'"

12. At paragraph 19 Rix LJ had cited a passage from Kandhari (unreported, 24th April 1979), which is also relied on by Mr Thomas in his advice in this case. In that case Bridge LJ had observed that the question whether to recommend deportation should be decided

i. "quite independently of the status of the particular offender before the court in relation to his position under the Immigration Act."

13. However, in Benabbas Rix LJ said this about that passage:

i. "41. ... 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 Nazari in suggesting that a reommendation 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 undermines the good order of society. In our judgment, such a view is consistent with what the [European Court of Justice] has said in Bouchereau, which subsequent English authorities have said to be the same as the detriment principle (see Escauriaza, Cravioto.

ii. 42. 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."

14. Rix LJ concluded that because the offence in that case was connected to the offender's status and because he had failed to disclose his true address to the police the case was so serious that the recommendation was justified. The appeal in that case was dismissed.
15. Mr Thomas submits that that case is at odds with the other cases in relation to the level of offending that may give rise to a recommendation, and that the court did not apply the test adopted in the more recent case of Carmona. We do not accept those submissions . It is clear, in our judgment, that there is no inconsistency in the cases. They were dealing with different factual bases. The court in Benabbas (at para 46) did in any event approach the question on the basis of what was going to undermine the good order of society in the context of the use of stolen and forged passports.
16. The alternative submission of Mr Thomas is that the level of the offending of the appellant in this case is far less sophisticated than the level of offending in Benabbas, and that on the facts of this case a recommendation for deportation ought not to have been made. On this submission he is on stronger ground.
17. The level of offending in the present case is certainly less serious in that the appellant was using her false documents to gain work; she was candid and admitted the true facts as soon as she was arrested, and there are no other aggravating features of her case. There are also a number of personal factors relating to the appellant in this case which we do not need to set out in this judgment but which, in our view, are factors which the sentencing judge was less well placed to assess than the Home Secretary. Using false documents to cover up her unlawful entry into this country is undoubtedly a detriment to society. It undermines the system of immigration control, and this is a relevant feature in deciding whether or not to make a recommendation. But like the court in Benabbas we do not go so far as Lawton LJ did in Nazari in suggesting that a recommendation for deportation should be automatic in a case such as this. It is relevant but not dispositive.
18. The present case is not a guideline case. We have not heard submissions from counsel for the Crown, who was not asked to attend. In our judgment, the offence in the present case did not itself automatically call for a recommendation for deportation from the court. There is nothing on the facts of this case that a judge, in our judgment, could usefully add to the material which will in any event be before the Home Secretary. The question of deportation should, in our judgment in this case, be left to the Home Secretary and a recommendation should not, therefore, have been made.
19. For those reasons the appeal should be allowed.