England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Harrow Crown Court
His Honour Judge Greenwood
T20107326

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/09/2013

Lord Justice Fulford :

1. At the conclusion of the hearing on 17 September 2013 we dismissed the appellant's appeal against conviction. These are our reserved reasons.
2. On 17^th February 2011 at the Harrow Crown Court, the appellant pleaded guilty to count 1 on the indictment he faced, namely the offence of assisting unlawful immigration between 27 October 2008 and 11 October 2010, contrary to section 25(1) Immigration Act 1971 ("the Act"), although it is to be noted that the prosecution did not set out in the count the particular immigration law in relation to which it was alleged the appellant facilitated breaches.
3. On 29^th March 2011 Judge Greenwood sentenced him to 6 years' imprisonment.
4. The prosecution offered no evidence against the appellant in relation to four counts of conspiracy to assist unlawful immigration (counts 2, 4, 6 and 8).
5. His 4 co-accused (Gurjeet Singh, Raman Kumar Gupta, Baljit Singh and Nagendra Tripathi) pleaded guilty to individual counts of obtaining leave to remain in the United Kingdom by deception, contrary to section 24A(1) Immigration Act 1971 (counts 3, 5, 7 and 9) and they were sentenced respectively to 6 months', 10 months' and two terms of 7 months' imprisonment.
6. On 14 November 2011 the Full Court dismissed the appellant's renewed application to appeal his sentence of imprisonment and on 9 May 2013 the Full Court dismissed the appellant's appeal against the confiscation order in the sum of £107,836 (the issue on that latter appeal related to Judge Greenwood's assessment of the appellant's available assets) (see [2011] EWCA Crim 2774 and [2013] EWCA Crim 892).
7. At the relevant time the appellant worked as a regulated Immigration Adviser within the scheme run by the Office of Immigration Services Commissioner ("OISC") and it was alleged that he assisted in the preparation and submission of fraudulent Tier 1 (General) High Skilled Worker extension applications to the United Kingdom Border Agency ("UKBA") by individuals who he knew were not European citizens ("the applicants"). In each instance they were Indian nationals who had limited leave to remain in the UK and their applications were for an extension of that leave, for which proof of sufficient earnings was required as part of the relevant points-based system. Additionally, it was necessary for the Tier 1 applicants to demonstrate that their bank accounts were kept in regular credit balance that did not fall below a specified sum. The appellant produced false payslips and transferred the amount shown on them to the applicants' bank accounts. They then returned the money to him and the process was repeated. Thus by the payment of one sum of money it was possible to make it appear as though the relevant applicant was in receipt of regular earnings. Figures from these documents or the documents themselves were submitted in support of applications for an extension of leave to remain in the UK.
8. One of the companies used to issue the payslips was Global Property Consultants of which the appellant was a director. The company carried on no other legitimate business activities. The appellant was paid a total of £60,000 for these dishonest applications. In all the circumstances, it was alleged that when he submitted the applications with bank statements and false payslips on their behalf to the United Kingdom Border Agency he knew they were false and it was alleged he was aware he was thereby facilitating breaches of the relevant immigration law.
9. He now appeals against his conviction by the leave of the single judge, who limited the issues to be argued as follows:

"I consider that it is arguable that the applicant was not facilitating breaches of "immigration law" and that the relevant immigration law has not been clearly or sufficiently identified. He may well have been assisting in the commission of criminal offences under s.24A of the […] Act 1971 but it is arguable that that does not involve breach of immigration laws (see s.11(2)). […]"

10. The relevant part of section 24A of the Act provides:

"A person who is not a British citizen is guilty of an offence if, by means which include deception by him—

he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or

[…]"

11. Although not advanced by counsel now instructed, Mr Seymour, in his Perfected Grounds of Appeal/Skeleton Argument dated 22 July 2013, the appellant has filed separate grounds in which he criticises his previous representatives. As explained hereafter, those criticisms are unsustainable because Mr Seymour accepts there was a proper basis for the appellant to plead guilty to Count 1, albeit, as addressed below, he argues the prosecution has impermissibly changed its stance as to the relevant immigration law. We should make it clear that Mr Seymour was not instructed when this case was before the Crown Court; indeed, he was only briefed in the present proceedings after the single judge granted leave to appeal.
12. The short argument advanced by Mr Seymour is that it is to be inferred that in the Crown Court the prosecution proceeded on the basis the appellant had facilitated breaches of section 24A(1) of the Act and that the respondent's case on this appeal is now improperly presented on a different basis, in that the Crown rely on the "conspectus" of immigration law (to use the expression of Mr Kovats QC on behalf of the respondent) that expressly does not include section 24A(1).
13. Although it is irrelevant to the merits of this appeal, we note the way in which the Crown puts its case as to the relevant immigration law only became clear a few days before the hearing of the appeal – the delay in the service of the prosecution skeleton argument was not in any sense the fault of Mr Kovats – and Mr Seymour (together with the single judge) made an assumption, no doubt in part based on the applicant's own grounds of appeal, that section 24A(1) was relied on in this context. As a consequence, Mr Seymour had to abandon his original grounds of appeal and accompanying skeleton argument, and his principal argument, as summarised above, was developed for the first time during the hearing of the appeal in oral submissions.
14. Mr Seymour has been unable to take the court to anything that was communicated by the prosecution at any stage in these proceedings which suggested the Crown relied on section 24A(1). The count was framed in the following way:

"Count 1

STATEMENT OF OFFENCE

ASSISTING UNLAWFUL IMMIGRATION, contrary to section 25(1) of the Immigration Act 1971.

PARTICULARS OF OFFENCE

HARPREET DHALL between 27^th day of October 2008 and 11^th October 2010 repeatedly facilitated breaches of immigration law by non European Union citizens, namely, Gurjeet Singh, Raman Kumar Gupta, Baljit Singh, Nagendra Mewa Prasad Tripathi, Tahir Anwar, Sanchit Luthra, Abhishek Prasad, Sidartha Varma, Deepak Sud, Javen Baath, Pankaj Chandole and Satish Kumar Yadav, knowing that they were not European Union citizens, in that he transferred money to their bank accounts to support false evidence of earnings in respect of their Tier 1 immigration applications, and thereby submitted applications on their behalf to the United Kingdom Border Agency which were false and which he knew to be false, knowing that those acts would facilitate a breach of immigration law by them."

15. Mr Brady (prosecuting counsel who opened the case to the judge after the guilty pleas had been entered) made no mention of section 24A(1) or the particular immigration law relied on, in part because there was no request to furnish additional details by way of further particulars of the count, or otherwise. It was simply accepted by all concerned (including the appellant) that his acts had facilitated the breach of immigration law by the others named in the count. As indicated in Kapoor and others v The Crown [2012] EWCA Crim 435 [7], if there is a trial it is preferable for the count to specify the immigration law relied on as regards the alleged breach although express reference to this in the prosecution's opening will suffice.
16. Mr Seymour contended it is to be inferred that section 24A(1) must have been "in the mind" of the prosecution because each of the appellant's co-accused was charged under that section as part of a pair of counts (the other being conspiracy to assist unlawful immigration), and accordingly count 1 was, in effect, a conspiracy to commit the section 24A(1) offences in counts 3, 5, 7 and 9.
17. In our judgment, these arguments are unsustainable. It is not suggested that the count, as drafted, is in breach of section 3 of the Indictments Act 1915: it is a properly drafted charge, and as we have already observed, there was no request to the prosecution to provide further particulars. Whatever may privately have been in the minds of the individual who drafted the indictment or prosecuting counsel on 17 February 2011 is wholly irrelevant, in that no representations to the appellant or the court were made in this context. Accordingly the appellant has not, in any sense, been led to act to his disadvantage on the basis of a material representation that has been altered or withdrawn, such as to constitute an abuse of the process of the court. The unexpressed thoughts of counsel and employees of the Crown Prosecuting Service are wholly irrelevant for these purposes and the appellant is not entitled to disclosure of the personal musings of members of the prosecution team.
18. That argument aside, it is not in dispute that the appellant "did an act", or rather "acts", for individuals who he knew were not citizens of the European Union. It is also not in dispute that his objective was to provide false documents in order improperly to enhance their prospects of remaining in the UK. Further, it is accepted that none of the applicants had a right of abode in the United Kingdom, and they were not entitled to remain in this country without leave, by virtue of sections 1(2) and 3(1)(b) of the Act:

"Section 1 (2)

Those not having (right of abode) may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; […]

Section 3(1)(b)

Except as otherwise provided by or under this Act, where a person is not a British citizen —

(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period."

19. Section 25 (entitled "assisting unlawful immigration to member state") provides in (1) and (2) as follows:

"(1) A person commits an offence if he—

(a) does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union,

(b) knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and

(c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

(2) In subsection (1) "immigration law" means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to—

[…]

(c) be in the State."

20. Given the circumstances set out above and the terms of sections 1 and 3 of the Act, Mr Seymour conceded – in our view wholly accurately – that when this appellant submitted the false documents to the United Kingdom Border Agency, he did an act which facilitated the commission of a breach of immigration law by those individuals who were not citizens of the European Union and whose applications for an extension of leave, in due course, were granted. It was accepted that he knew or had reasonable cause for believing that he was facilitating the commission of a breach of immigration law (viz. sections 1 and 3 of the Act) by the applicants who fell within that category (thereby committing an offence under section 25). Mr Seymour conceded that as regards being in the UK ("to be in the State") for the purposes of section 25(2), there is no distinction between (a) an applicant who, having originally been lawfully in the UK, secured an extension of leave by means which included deception (e.g. for present purposes, this was facilitated by submitting a false application or documents), and (b) an applicant who, having originally been lawfully in the UK, remained in this country after the expiry of his leave (e.g. for present purposes, his continued presence – which had become unlawful – was facilitated by another). Mr Seymour acknowledged there was no arguable basis for submitting that the former situation was not capable of being covered by the definition of an immigration law.That concession was expressly influenced by the decision in R v Javaherifard [2005] EWCA Crim 3231; [2006] IAR 185. Ouseley J, giving the court's judgment in a case in which the defendants facilitated the entry by two Iranian nationals into this country and their stay in the UK thereafter (contrary to section 25 of the Act) observed that:

"46. […] we reject the assumption that the concept of immigration law controlling entitlement to "be in the State" requires any special interpretation so that it only applies to those who remain in the State after the expiry of limited leave or after a breach of its terms. It is inevitable that immigration control will use words on occasions with a technical meaning, but unless that technical meaning is clearly intended to be used in a particular context, Courts should avoid an unduly technical approach. S25 (2) is clearly intended to embrace all aspects of that which immigration law can control: entry, transit and the sweeping up phrase of "being in the State". "Entry" has in certain contexts a technical meaning as we have discussed. So too does "transit"; as already discussed, it is aimed primarily at those who remain airside and so do not "enter" the country at ports, yet who require transit visas. "Being in the State" covers all the other aspects of presence, including arrival pre-entry, overstaying or breach of leave, or presence as an illegal entrant who has no leave. Indeed, it contrasts with the term "remain" which, used in a technical sense, is the meaning which in effect the Appellants contend "be" should have. Had Parliament intended to confine "being in the State" to those who enter with limited leave and either overstay or breach its terms, then the word "remain" at least would have been used to contrast with "entry", and its technical scope would then have been for debate.."

21. Mr Seymour sought to draw a distinction, which we do not need to resolve, between the situation when fraudulent applications for an extension of leave are granted and when they are refused: in the latter instance, Mr Seymour suggests that there would not have been a breach of section 1 of the Act or any other aspect of relevant immigration law, and accordingly no offence, as regards those individuals, would have been committed under section 25(1).
22. The realistic stance adopted by Mr Seymour as regards at least some of the applicants – which accords with the best traditions of our legal professions – and our conclusions on the main argument on this appeal concerning the suggested change in stance by the Crown are determinative of this appeal. A number of other issues were raised as to the meaning of the expression "immigration law" for the purposes of section 25(2), and particularly the ambit of the corpus of laws that controls the entitlement of individuals who are not nationals to be in the UK, but it is unnecessary for us to give further consideration to them. Determining whether or not the appellant's acts facilitated the commission of breaches of other aspects of the relevant "conspectus" of immigration law (such as provisions within the Immigration and Asylum Act 1999 or the immigration rules) or, as just indicated, whether there was a breach of sections 1 and 3 of the Act or some other provision for those Indian nationals whose applications for an extension of leave to remain were refused, is an unnecessary undertaking, given the appellant's counsel accepts he had facilitated the commission of breaches of sections 1 and 3 of the Act whenever a relevant application for an extension was granted.
23. For these reasons this appeal against conviction is dismissed.