Act: Shead; Hughes Walker, Edinburgh

Alt: McCallum, A.D.; Crown Agent

28 March 2008

[1] This is a continued appeal by Elyes Alili against the disposal by the sheriff at Edinburgh on 21 November 2006 when the appellant pled guilty, as libelled, to an indictment that on 24 September 2006 at an address in Edinburgh he did with the requisite intention have in his possession or under his control an identity document, namely a French identity card in the name Dani Dib, that was false and that he knew or believed it to be false contrary to the Identity Card Act 2006, section 25(1)(a).

[2] The sheriff sentenced the appellant to a period of thirty two months' imprisonment, backdated to 25 September 2006 when he had been taken into custody. He also made a recommendation that the appellant be deported from this country on completion of his sentence.

[3] The appellant appealed against these disposals. At an earlier hearing of this appeal the disposal in respect of the custodial sentence was varied to the effect of substituting for the sheriff's disposal a sentence of twelve months' imprisonment to run from the same date, that period of twelve months having been arrived at after discounting from a period of eighteen months in respect of the plea of guilty which had been tendered. The matter of the deportation recommendation was continued with a view to a remit being made to the sheriff for a supplementary report in relation to that matter and the appeal on that aspect was continued. A report has now been obtained from the sheriff but it adds little to the material before this court as the sheriff was not addressed by the representative of the appellant in response to the motion by the Crown that a deportation order be made.

[4] A word should be said about the particular circumstances of this offence. The appellant was 23 years of age at the time. He had in his possession, it appears, on entering the United Kingdom some fourteen months prior to his apprehension, a false French identity card of the kind described in the indictment. The sheriff reports that he had used that card to gain entry to the United Kingdom at that time, although the Advocate Depute before us indicated that on his information no actual use had been made of that document but that the appellant had had it in his possession with a view to its prospective use in the course of his gaining entry to the United Kingdom.

[5] The object of the appellant in coming to this country was to obtain employment here. He came from Algeria originally; his family was poor and he had been unable to get work in Algeria. He was apprehended by police and immigration officers at a hotel in Edinburgh on Sunday 24 September 2006. At about 1.15 on that date he falsely stated to an immigration officer that he was a French national with the name Dani Dib. He was arrested and taken to a local police station. There he confirmed that he was in truth an Algerian national and at that stage gave his true name and date of birth. Later immigration and police officers searched his home where they found a French identity card bearing the appellant's image with the false name in question. When interviewed later the appellant admitted that he entered the UK from France with that document in his possession. He admitted he knew it was a forgery and had paid someone in Paris some £40 to acquire it. He has no prior criminal history.

[6] The issue before this court is, as we have said, concerned with the recommendation for deportation. Some considerable number of months ago the Crown intimated to the court that it might be appropriate, in dealing with this aspect of this case, for this court to look at certain English and Northern Irish authorities in relation to the matter - in particular whether or not, in light of certain of these authorities, in particular the case of R v Carmona [2006] 1 WLR 2264, this court should give guidance on the appropriate approach to the making of such orders in the light of the incorporation, into the law of the United Kingdom, of Convention rights. That intention on behalf of the Crown was unfortunately not communicated to the appellant's agents at that time or indeed until very recently and a consequence of that is that we were unable to hear full submissions from Mr Shead on behalf of the appellant on that aspect. We are grateful for such submissions as he was able to make in relation to the matter. In the event that aspect became irrelevant because it was not contended on behalf of the appellant that there were any Convention rights engaged in this case on which the appellant would seek to rely in relation to the order made.

[7] In these circumstances the test which has been laid down in this court in the case of Willms v Smith 1981 S.C.C.R. 257 appears to be applicable, that is, whether the continued presence in this country would be contrary to the national interest. It is appropriate to look at the matter in the present circumstances in the light of that authority. Certain more recent authorities were also drawn to our attention, in particular one recent case, R v Ahaiwe 2007 EWCA Crim 1018, in which the court made certain observations in relation to the matter. Somewhat surprisingly, that court appears to have taken the view that what had been said by Lawton L.J. in the earlier case of Nazari suggested that there would be an automatic recommendation in cases of this kind involving unlawful entry into the country or the like. We do not read Lawton L.J. as saying that; rather that that would normally be the case. But of some importance, it appears to us, is what appears in paragraph 18 in the judgment delivered by Tugendhat J., namely, that there was in that case, as there is in this case, nothing on the facts that a judge could usefully add to the material which will in any event be before the Home Secretary.

[8] We recognise that deterrence is an important consideration in relation to offences of this kind. On one view it could certainly be said to be detrimental to the interests of this country that the immigration regulations and rules should be circumvented. Nonetheless, it appears to us that the custodial sentence which was substituted by the Appeal Court included within it a significant deterrent element and we do not think it is necessary for deterrent purposes to make a recommendation of the kind which is open to us. As we have said, the whole circumstances will be before the Home Secretary and can be dealt with as he thinks fit.

[9] In all the circumstances, accordingly, we shall allow the appeal on this aspect and quash the recommendation.