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Home » Professionals » Legal Guidance » H to K » Immigration

Immigration

Last Updated on 01/10/08

Principle

There are two ways of dealing with illegal immigrants:

  • administratively by the Immigration Authorities, i.e. Immigration Officers, or the Home Office; or
  • by way of criminal proceedings.

In general, even if criminal proceedings cannot be taken, a person may remain administratively categorised as an illegal immigrant and still be subject to deportation or removed by the Home Office under Section 3(5) or Section 4(2) Immigration Act 1971 (the 1971 Act).

This chapter will provide guidance on the following criminal offences:

  • Entering without leave (Section 24(1)(a) of the 1971 Act);
  • Obtaining leave by deception (Section 24A (1) of the 1971 Act) as replaced and extended by (Section 24A) inserted by reason of Section 28 of the Immigration and Asylum Act 1999;
  • Remaining beyond time limited by leave (Section 24(1)(b)(i) of the 1971 Act);
  • Failing to observe a condition of leave (Section 24(1)(b)(ii) of the 1971 Act);
  • Registration card offences (section 26A of the 1971 Act as introduced by Section 148 of the Nationality, Immigration and Asylum Act 2002;
  • Possession of Immigration Stamps (section 26B of the 1971 Act as introduced by Section 149 of the Nationality, Immigration and Asylum Act 2002;
  • Offences in connection with administration of the Act (Section26) as extended by Section 30 of The Immigration and Asylum Act 1999;
  • Employment of illegal immigrants (section 8 Asylum and Immigration Act 1996);
  • Accession (Immigration and Worker Registration) Regulations 2004
  • Not having a travel document at a leave or asylum interview (section 2 Asylum and Immigration (Treatment of Claimants etc) Act 2004;
  • Non Cooperation with request for information (section 35 (3) Asylum and Immigration (Treatment of Claimants etc) Act 2004);

Public Interest Considerations

In cases where the offence is trivial and action has or will be taken by the immigration authorities, the public interest may not be served by a prosecution.

The fact that a defendant is to be administratively removed by the immigration authority does not, in itself, justify discontinuance.

When assessing the public interest criteria you will need to balance questions of delay, remands in custody and likely sentence against the gravity of the offence and any other compelling public interest consideration that may require a prosecution. It should be borne in mind that administrative removal may not prevent re-entry.

When it comes to the notice of the prosecutor that the suspect has committed an immigration offence whilst in a coerced situation and may be a victim of human trafficking, prosecutors should refer to the guidance in Policy Bulletin In these circumstances prosecutors must consider whether the public interest is served in continuing the prosecution in respect of the immigration offence.

Guidance

Entering Without leave - S24 Immigration Act 1971

This offence came into force on 1 January 1973.

The offence of entering without leave is committed only if no leave at all was granted. If leave obtained by fraud then consider an offence of obtaining leave by deception under Section 24(A) of the 1971 Act as well as potential offences under the Forgery and Counterfeiting Act 1981.

This offence can only be committed by non-British citizens and requires proof that they knowingly entered the UK without leave of an immigration officer or in breach of a deportation order. The offence is committed on the day of entry and is not a continuing offence.

This offence is a summary offence and thus the maximum sentence is imprisonment for up to 6 months or a maximum fine on level 4.

Obtaining leave by Deception - S24A (1) Immigration Act 1971

This offence came into force on 14 February 2000.

A person who is not a British Citizen commits this offence if by means which include deception by him

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

(b) he secures or seeks to secure the avoidance postponement or revocation of enforcement action against him.

The offence is an either-way offence and the maximum penalty on indictment is an unlimited fine or imprisonment for a term not exceeding 2 years, or both.

In proving deception, direct evidence from the immigration official who was deceived should ordinarily be obtained. Further information regarding this element can be found in the legal guidance dealing with the dishonesty offences under S15 of the Theft Act 1968.

In drafting a charge or indictment under this section, it will be necessary to elect whether the allegation is made under S24A (1)(a) or (b) of the 1971 Act.

There may also be an offence under S26 (1)(c) of 1971 Act of making a false statement, return or representation to an immigration official in the commission of any offence under S24 of the 1971 Act. The s26 offences are explained below.

The statutory defence under S31 Immigration and Asylum Act 1999 applies to this offence.

The leading authority for sentencing is R v Nasir Ali [2002] 2 Cr. App. R. This case indicates that even where a guilty plea is entered, a sentence of 9 to 12 months imprisonment should be imposed. In terms of venue, therefore, such offences should ordinarily be dealt with in the Crown Court unless there is exceptional mitigation or the sentencing powers available to the magistrates' court are increased for any reason.

Remaining Beyond Time Limited by Leave (overstaying) - Section 24 (1)(b)(i) Immigration Act 1971 

Remaining beyond time limited by leave contrary to Section 24(1)(b)(i)) (overstaying) requires proof of limited leave, expiry date and proof of knowledge of remaining beyond that date. This offence came into force on 1 January 1973

Admissions and/or evidence from an Immigration Officer are the normal methods of proof of the offence. The Immigration Officer who admitted the defendant will be able to give material facts. This will include the explanation to the defendant of the limits of leave and the fact that a notice in writing under Section 4 was given (usually a passport stamp).

Note: A defective passport stamp is insufficient to satisfy the requirements of a notice in writing.

An offence under Section 24(1)(b)(i) is a continuing offence by virtue of Section 24(1A) of the 1971 Act. An offender may only be prosecuted once in respect of the same limited leave. You should therefore charge the offence as being committed on the day when the defendant first knew that the time limited by the leave had expired or alternatively as an offence continuing over a specified period.

If an immigrant applies to the Secretary of State within the period of leave for an extension then, when the original leave expires, the period of leave is deemed to continue by S3C of the 1971 Act as introduced by S3 Immigration and Asylum Act 1999. .

If the Home Office extends leave, a letter will normally be sent to the immigrant stating the new limit. This provides the requisite notice in writing and its admissibility is governed by Section 32(2) of the 1971 Act.

This offence is a summary-only offence and thus the maximum sentence is a fine or imprisonment for a maximum term of 6 months.

Failing to Observe a Condition of Leave - Section 24(1)(b)(ii) Immigration Act 1971

As with the offence of overstaying, this offence is committed and continues to be committed where it is proved that a specific condition on which leave was granted has been broken. The evidence of the immigration official imposing the condition and any written evidence of the defendant's knowledge will clearly be necessary. In addition some proof of how the condition was broken will inevitably be required. This offence came into force on 1 January 1973.

The kinds of conditions normally imposed include:

  • Not to take up paid employment;
  • Residence; and
  • Not to have 'recourse to public funds' (consider also further charges for dishonesty offences).

You will need to prove notice in writing (e.g. Passport stamp; Home Office notice) and guilty knowledge.

Exercise care in circumstances where leave has been extended. Evidence must be adduced that the condition continued to apply on the date of the offence. If the leave expires, either through non or late application then so do the conditions. Any breach of them merges into the offence of overstaying (Singh (Gurdev) v R [1974] 1 All ER 26).

Where the Police discover an immigrant in employment in breach of a condition of leave, you should consider whether evidence will support an offence of aiding and abetting against the employer provided it can be established that the employer was aware of the condition and/or an offence under section 8 Asylum and Immigration Act 1996 (see below).

Sections 24(1)(c) to (g) create offences of failing to comply with miscellaneous requirements. Examine failures by the immigrant to see if any of these less common offences are more appropriate.

These offences are summary-only. The maximum sentence is a fine at level 5 or 6 months imprisonment, or both.

Registration Card Offences - Section 26A Immigration Act 1971

This offence came into force on 10 February 2003 and was substituted by Section 148 Nationality, Immigration and Asylum Act 2002.

This section creates a number of offences relating to the creation, possession and use of false or altered registration cards.

A registration card is defined in S26A (1) and (2) as a document which carries information about a person and is issued by the Secretary of State in connection with a claim for asylum. The Secretary of State may change the definition by order.

The offences created are:

(a) Making a false registration card

(b) Altering a registration card with intent to deceive (or to enable another to deceive);

(c) Possessing a false or altered registration card without reasonable excuse;

(d) Using or attempting to use a flase registration card for a purpose for which such a card is issued;

(e) Using or attempting to use a false or altered registration card with intent to deceive;

(f) Making an article designed to be used in making a false registration card;

(g) Making an article designed to be used in altering a registration card with intent to deceive (or to enable another to deceive); and

(h) Possessing an article as described in (f) or (g) above without reasonable excuse.

All these offences are either-way. Offences under (c) and (h) carry a maximum sentence of 2 years on indictment while all the remaining offences have a maximum sentence of up to 10 years imprisonment on indictment.

Bearing in mind the nature of the offences and the sentences that can be imposed, it is likely that most such cases will not be suitable for summary trial unless there are exceptional circumstances to justify this course of action.

Possession of Immigration Stamps or replica Immigration Stamps - Section 26B(1) and (2) Immigration Act 1971

These two offences came into force on 10 February 2003 and were substituted by Section 149 Nationality, Immigration and Asylum Act 2002.

Under Section 26(B)(1) a person commits an offence if he has an immigration stamp in his possession without reasonable excuse.

Under Section 26(B)(2) a person commits an offence if he has a replica immigration stamp in his possession without reasonable excuse.

"Immigration stamp" means a device which is designed for the purpose of stamping documents in the exercise of an immigration function.

"Replica immigration stamp" means a device which is designed for the purpose of stamping a document so that it appears to have been stamped in the exercise of an immigration function.

"Immigration function" means a function of an immigration officer or the Secretary of State under the Immigration Acts

These offences are either-way offences and the maximum sentence on indictment is 2 years imprisonment.

It is unclear whether the most suitable venue for such offences. It is likely that any element of organisation or financial gain is involved will inevitably make a case more suitable for trial on indictment rather than summarily.

Offences in Connection with Administration of the Immigration Acts

Section 26(1) Immigration Act 1971

This offence came into force on 1 January 1973. An offence is committed under this section when conducting an examination on entry where:

(a) without reasonable excuse, he refuses or fails to submit to examination under Schedule 2 to this Act;

(b) if, without reasonable excuse, he refuses or fails to furnish or produce any information in his possession, or any documents in his possession or control, which he is on an examination under that Schedule required to furnish or produce;

(c) if on any such examination or otherwise he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of [a relevant enactment] a return, statement or representation which he knows to be false or does not believe to be true;

(d) if, without lawful authority, he alters any [certificate of entitlement], entry clearance, work permit or other document issued or made under or for the purposes of this Act, or uses for the purposes of this Act, or has in his possession for such use, any passport, [certificate of entitlement], entry clearance, work permit or other document which he knows or has reasonable cause to believe to be false;

(e) if, without reasonable excuse, he fails to complete and produce a landing or embarkation card in accordance with any order under Schedule 2 to this Act;

(f) if, without reasonable excuse, he fails to comply with any requirement or regulations under section 4(3) or of an order under section 4(4) above;

(g) if, without reasonable excuse, he obstructs an immigration officer or other person lawfully acting in the execution of this Act.

Section 30 of the Immigration and Asylum Act 1999 extends Section 26 to cover future statements or representations made to a person lawfully acting in the execution of other immigration legislation subsequent to the Act namely:

  • The Immigration Act 1988
  • The Asylum and Immigration Act 1993 (excluding Part VI).

Most commonly encountered is an offence contrary to Section 26(1)(c) which relates to the making of a false statement to an Immigration Officer or other person lawfully acting under the Act.

The "other person" may include a police officer but not when the officer is investigating a suspected offence under the Act. The relevant falsehood has to be addressed to a person in the course of a specific procedure under the Act whereby that person's statutory function involved the obtaining or receipt of information relevant to the performance of that function: (see R v Clarke (Ediakpo) [1985] 2 All ER 777).

In relation to Section 26(1)(c) there must be a statement of representation made. A simple failure to inform the Immigration Officer of material facts would not amount to an offence, since there is no duty of candour placed on the immigrant. However, conduct and silence as to material facts may amount to a representation.

There is no indication in the legislation as to what amounts to a reasonable excuse. This will ultimately be a matter of fact for the courts to decide in the particular circumstances of each case. Evidence to contradict any claims of reasonable excuse should be obtained where possible. In addition any late claims of reasonable excuse could be discredited if it was not mentioned at an earlier opportunity.

The extended time limit for prosecutions provided for by section 28 below apply to offences under subsection (c) and (d) above. The defence in Section 31 of the Asylum and Immigration Act 1999 (refugee status) applies to Section 26(1)(d)

These offences are summary only offences punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both.

Employment of Illegal Immigrants - Section 8 Asylum and Immigration Act 1996

This offence came into force on 1 December 1997.

An offence is committed where any person ("the employer") employs a person subject to immigration control ("the employee") who has attained the age of 16, if-:

(a) the employee has not been granted leave to enter or remain in the United Kingdom; or

(b) the employee's leave is not valid and subsisting, or is subject to a condition precluding him from taking up the employment, and

(c) (in either case) the employee does not satisfy such conditions as may be specified in an order made by the Secretary of State.

A successful prosecution will require evidence, admissible against the defendant, of the identity and status of others (the employee(s)) who may not be before the court unless they are jointly charged for aiding and abetting the offence. This will normally be provided by the immigration service by way of statements to show that the employee was not legally entitled to work with detailed reasons as to why this is the case (see evidential considerations below).

It is a defence for a person charged with an offence under this section to prove that before the employment began any relevant requirements of the Order of the Secretary of State under subsection (2A) (inserted by S147 Nationality and Asylum Act 2002) were complied with.

An order under S2A of this Act may:

(a) require the production to an employer of a document of a specified description;

(b) require the production to an employer of one document of each of a number of specified descriptions;

(c) require an employer to take specified steps to retain, copy or record the content of a document produced to him in accordance with the order;

(d) make provision which applies generally or only in specified circumstances;

(e) make different provision for different circumstances."

However this defence is not available in any case where the employer knew that his employment of the employee would constitute an offence under this section.

The wording of the defence is such that even forgeries will provide a defence to an employer provided the 'appeared to him to relate to the employee'.

A person guilty of an offence under this section shall be liable -

(a) on conviction on indictment, to a fine, or

(b) on summary conviction, to a fine not exceeding the statutory maximum

as amended by S. 6 of the Asylum and Immigration (Treatment of Claimants) Act 2004

The relevant order is the Immigration (Restrictions on Employment) Order 2004 which lists the documents which an employer must see and copy before employment commences to have a defence. The documents that can be produced under this section are stated in SI 755 of 2004.

On 29.02.08, SI 310 of 2008 brought in new provisions under the Immigration, Asylum and Nationality Act 2006 and, of note, removed criminal penalties that had applied under section 8 of the Asylum and Immigration Act 1996 for employers who did not take care to check their employees' immigration status.

Instead section 15 of IANA created a new civil penalty regime for employers.

In addition section 21 of IANA creates a new offence of knowingly employing adults subject to immigration control.

An employer can now face three potential sanctions:

1. Civil penalties under section 15 of the IANA 2006.

This is the starting point for consideration and according to the Home Office Border and Immigration agency should be used for all routine non-compliance with the law. The procedure is that a Notification of Potential Liability (NOPL) is served in all instances where an immigration offender working illegally is encountered or arrested. That is then copied to the HO, BIA department responsible for deciding whether to issue the formal penalty notice. They will take account of:

  • Whether full or partial document checks have been completed by the employer;
  • Whether any previous penalties or warnings have been issued to the employer within the previous three years, and if there has been any subsequent improvement in their procedures;
  • Whether the employer has adhered to the Civil Penalty Code of practice;
  • If the employer has reported any suspected illegal workers and can provide evidence of doing so before the visit by investigating officers (if the employer contacts the Employers' Helpline to report their suspicions, they will be provided with a unique reference number (URN) and this can be used to verify the employer's claim);
  • If the employer has not obstructed the Border and Immigration Agency in conducting any operation to apprehend any illegal workers in question;
  • Whether the migrant worker is living and working in the UK illegally; or
  • Whether the migrant worker is legally resident in the UK, but has been found to be working in breach of their employment restrictions; and
  • The thoroughness and / or consistency of the employers' existing employment processes.

In some cases that department may decide to refer cases for possible criminal proceedings.

2. Criminal proceedings under section 21 IANA, carrying a maximum penalty of two years.

This will be appropriate in cases where a civil penalty procedure is considered inadequate. That is cases where it is obvious that the employer has deliberately and knowingly breached the law.

3. Criminal proceedings under section 25, of the Immigration Act 1971, as amended, carrying a maximum penalty of 14 years imprisonment.

Only in serious cases involving organised criminal activity to evade immigration rules should the third option be considered where the acts relied upon amount to no more than employing adults subject to immigration control.

Note that section 21, the less serious offence, requires proof of knowledge, while for the more serious offences what is required is that the defendant "knows or has reasonable cause to believe". The lesser evidential requirement is not a factor that would justify prosecutions for the more serious offence in minor cases, for which Parliament has created a specific regime.

In every case part of the code review process should include considering the reasons for the authorities not adopting the penalty notice procedure. If there is no clear decision making process on papers submitted by the police this should be questioned. Recorded reasons will make cases less susceptible to abuse arguments or judicial review.

Accession (Immigration and Worker Registration) Regulations 2004

These offences came into force on 1 January 2007 and the regulations make provision in relation to the entitlement of nationals in Bulgaria and Romania (A2 nationals) to reside and work in the United Kingdom

Regulation 12 creates an offence for an employer to employ a Bulgarian and Romanian national that is subject to the requirement to hold a work authorisation document but does not have one, or who is undertaking work other than that specified in the document.

This is a summary only offence with a maximum fine on conviction in the magistrate's court of £5,000 per worker.

Regulation 13 creates an offence for an A2 national to take employment unless authorised to do so by means of an appropriate worker authorisation document, passport or travel document.

This is a summary only offence with a maximum fine on conviction in the magistrate's court of £5,000 or imprisonment for not more than 3 months.

Section 14 creates an offence of deception by the employee. A person is guilty of an offence if, by means which include deception by him, he obtains or seeks to obtain an accession worker card.

This is a summary only offence with a maximum fine on conviction not exceeding level 5 or imprisonment for not more than 3 months, or both.

Section 2 Asylum and Immigration (Treatment of Claimants etc) Act 2004

Not Having a Travel Document at a Leave or Asylum Interview -

This offence came into force on 22 September 2004

Section 2 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the 2004 Act) creates an offence of a person not having an immigration document for himself or any dependant children, at a leave or asylum interview on entering the United Kingdom. The offence is intended to discourage persons from destroying or disposing of their immigration documents en route to the United Kingdom, particularly where doing so in order to conceal their identity, age or nationality in an attempt to increase the chances of success of a claim or application or to make consideration of their claim or application more difficult and/or to thwart removal.

It is not the intention of the offence to penalise those who never had an immigration document during the course of their journey to the United Kingdom, or those who use a false immigration document (e.g. a false passport) to travel to the United Kingdom and who produce that document on arrival.

The offences under sections 2(1) and 2(2) of the 2004 Act are either-way offences and carry a maximum penalty of two years imprisonment, a fine, or both.

No offences are committed where:

  • the interview takes place after the person has entered the United Kingdom (in-country applications), and
  • within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that subsection.

The Act also provides statutory defences to the offences in the Act.

Sections 2(4) and 2(5) of the Act state the main defences to the S2 (1) and 2(2) offences. These defences are that he (or the child):

a) is an European Economic Area (EEA) national;

b) is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom;

c) has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1);

d) produces a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his (or the child's) journey to the United Kingdom; or

e) travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document.

The term 'reasonable excuse' is not defined under the Act. However certain factors are specifically excluded from amounting to a reasonable excuse under section 2(7) of the Act.

The following excuses might be considered reasonable following the effects of the decisions in Thet and Mohammed and Osman (referred to below).

The applicant who states he has travelled on a genuine document:
  • unable to obtain a genuine travel document because of the political situation in the country of origin (as in Thet);
  • unable to obtain a genuine travel document because of lack of issuing facilities (as in Mohammed, who did not know where to go for a genuine passport - the CA indicated that this could amount to a defence);
  • genuine travel document stolen en route, or in the UK, through no fault of the applicant;
  • genuine travel document destroyed en route, or in the UK, through no fault of the applicant.
The applicant who states he has travelled on a false document: 
  • able to produce that false document and prove he has used it to enter the UK;
  • can establish a reasonable excuse for not being in possession of a genuine passport (ie. the Thet reason referred to above).
The applicant who says he never had any documents:
  • must show that at no stage in his journey to the UK, did he have any travel documents at all. (eg. if he can prove that he was smuggled for the entire journey in a lorry)

Section 2(8) of the Act creates a statutory presumption that a person does not have a document with him if he fails to produce it to an immigration officer or official of the Secretary of State on request.

Soe Thet - Director of Public Prosecutions [2006] EWCH 2701 (Admin) Where the defendant asserts that he has never been in possession of a genuine travel document and relies on section 2(4)(c), he does not commit an offence if he can provide reasonable excuse for not being in possession of a genuine passport in the first place. The defendant must satisfy the tribunal as to where he is from. The defences arising under sections 2(4)(c) and 2(6)(b) referred to genuine documents only.

The position was clarified in Mohammed and Osman [2007] EWCA Crim 2332. If the applicant states that he has travelled on a genuine travel document but does not have reasonable excuse for not providing it at interview, he will be caught by the Act. In the case of Mohammed she was unable to obtain a genuine travel document because of lack of issuing facilities. Neither could she produce false travel documents as they were removed by an agent.

The available defences therefore (following the cases referred to above) can be summarised as follows:

  • Defence 1 -section 2(4)(c): does the applicant have a reasonable excuse for not being in possession of a genuine document? If yes, he has a defence, even if he travelled on false documents;
  • Defence 2 - section 2(4)(d): if he travelled on false documents can he produce them? If yes, he has a defence;
  • Defence 3 - section 2(4)(e): can he prove that at no stage did he travel to the UK without documents at all (either genuine or false)? If yes, he will have a defence.

The length of imprisonment for a guilty plea with no aggravating features has ranged from 2 to 10 months. Mode of trial representations will depend upon a careful evaluation of all the circumstances in the case. However, it would appear that the starting point is likely to be that a case is borderline unsuitable for summary trial as that is consistent with the approach where a prosecution for persons who produce forged documents - see R v Kalawole (2004). Although ultimately a matter for the courts, it would be inconsistent for lesser sentences to be imposed for not having a travel document as opposed to having a forged document, as this would create an incentive rather than a deterrent effect to this offence. In such a situation an offender who travels on forged documents would be in a better position if he destroyed those documents as opposed to actually producing them. However see also R v Chang [2005] for some guidance regarding the situation where a youth is involved.

If any human rights issues are raised, the decision in R v Pepushi [2004] may be of some assistance.Further guidance can be found in the legal guidance under the heading <Human Rights

Non Cooperation With a Request for Information - Section 35(3) Asylum and Immigration (Treatment of Claimants etc) Act 2004

Section 35 creates an offence of failing to comply, without reasonable excuse, with actions that the Secretary of State may require someone to take so as to enable a travel document which will facilitate the person's deportation or removal from the United Kingdom to be obtained by that person or on his behalf.

The offence came into force on 22 September 2004.

This provision was intended to prevent people, who have exhausted all avenues of appeal following a failed asylum claim, to avoid deportation by refusing to sign the necessary documentation that is required before that person can leave the UK.

Under section 35(1), the Secretary of State may require a person to take a specified action if the Secreatry of State thinks that:

(a) the action will or may enable a travel document to be obtained by or for the person; and

(b) possession of the travel document will facilitate the person's deportation or removal from the United Kingdom.

Section 35(2) defines the specified action required, namely to:

  • provide information or documents to the Secretary of State or to any other person;
  • obtain information or documents;
  • provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information, about external physical characteristics (including, in particular, features of the iris or any other part of the eye);
  • make, or consent to or co-operate with the making of, an application to a person acting for the government of a State other than the United Kingdom;
  • co-operate with a process designed to enable determination of an application;
  • complete a form accurately and completely;
  • attend an interview and answer questions accurately and completely; and
  • make an appointment.

Under section 35(3), a person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under section 35(1).

Reasonable Excuse

The legislation is silent on what constitutes 'reasonable excuse'. In the case of R v Masoud Tabnak [2007] EWCA Crim 380 the Court of Appeal (Criminal Division) found that a failure to co-operate based on a fear of persecution or serious harm under the Refugee Convention and Article 3 of the Human Rights Convention, could not amount to a 'reasonable excuse' for not complying with the requirement imposed under section 35(1) of the Act. The Court confirmed the decision of the trial judge that "..to allow fear of persecution to amount to a reasonable excuse would frustrate the intended aims and objectives of Parliament." The provision is concerned solely with an inability to comply with the practical requirements defined in section 35(2).

The fear of persecution or serious harm is a defence which has already been considered by the Asylum and Immigration Tribunal, a specialist Tribunal which is best placed to consider whether the defendant's claim for asylum is genuine or not. Such a ruling is conclusive that a person is not a refugee and precludes a defendant from adducing evidence to raise the question of refugee status in criminal proceedings. If a defendant were allowed to raise fear of persecution as a defence at the Crown Court, it would, in effect, be placing the judge and jury in an appellate function over experienced professionals.

Examples of what might constitute reasonable excuse include the failure to attend an interview because of a medical appointment or difficulties with transport, or needing time for further information. Any claim which is raised as a 'reasonable excuse' must be substantiated. It is then for the prosecution to prove that the person did not take the appropriate steps and does not have a 'reasonable excuse' for failing to do so.

Burden of Proof 

The burden of proof is an evidential one on the defendant; that is, the defendant will need to raise evidence of his cause. Once the defence of 'reasonable excuse is raised, the burden of disproving it is on the Prosecution to the criminal standard.

The offence is an either-way offence.

A person guilty of an offence under section 35(3) shall be liable:

(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years, to a fine or to both, or

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine not exceeding the statutory maximum or to both.

Treaty of Rome - Special Rules

Note that Special Rules apply to citizens enjoying the protection of the Treaty of Rome. Failure to obtain the special residence permit required by Article 3(2) of Council Directive 68/260/EEC cannot be punished by deportation or imprisonment.

Proof of knowledge will be a key factor in a prosecution under Section 24(1)(b)(i). You will need to examine the evidence carefully to ensure that there is either direct or circumstantial evidence that the immigrant deliberately overstayed.

The fact that a defendant forgot the date does not provide a defence (R v Bello [1978] Crim L.R. 551).Deliberate failure to find out whether the leave expired on a certain date accompanied by a suspicion of expiry should be sufficient for a prosecution.

Prosecution Of Defendants Charged With Immigration Offences Who Might Be Trafficked Victims

Victims of human trafficking may commit the following immigration offences whilst they are being coerced by another:

  • using a false instrument under section 3 of the Forgery and Counterfeiting Act 1981;
  • possession of a forged passport or documents under section 5 of the Forgery and Counterfeiting Act 1981;
  • possession of a false identity document under section 25 Identity Cards Act 2006;
  • failure to have a travel document at a leave or asylum interview under section 2 Asylum and Immigration (Treatment of Claimants) Act 2004. 

When reviewing such a case, it may come to the notice of the prosecutor that the suspect is a credible trafficked victim. For these purposes, credible means that the investigating officers have reason to believe that the person has been trafficked.  

In these circumstances, prosecutors must consider whether the public interest is best served in continuing the prosecution in respect of the immigration offence.

The following factors are relevant when deciding where the public interest lies:

  • is the person a credible trafficked victim;
  • the role that the suspect has in the immigration offence;
  • was the immigration offence a direct consequence of their trafficked situation;
  • were violence, threats or coercion used on the trafficked victim to procure the commission of the offence;
  • was the victim vulnerable or put in considerable fear.

Where information has come to light from other sources that a suspect might be the victim of trafficking, for example from a Non Government Organisation (NGO), the prosecutor should:

  • contact the police officer or immigration officer investigating the immigration offences;
  • ask the investigating officer to make enquiries and obtain information in connection with the claim that the suspect has been trafficked (this should be done by contacting the UK Human Trafficking Centre [UK HTC]);
  • re-review the immigration case in light of any fresh information or evidence;
  • if new evidence obtained supports the claim that the suspect has been trafficked and committed the immigration offences whilst they were coerced, give consideration to  discontinuing the prosecution. Where there is clear evidence that the defendant has a credible defence of duress, the case should be discontinued on evidential grounds.

Evidential Considerations: Presumptions and Burdens

Victims of human trafficking may commit the following immigration offences whilst they are being coerced by another:

  • Section 24(4) of the 1971 Act provides for useful presumptions:

     

    • any stamp imprinted on a passport on a particular date for the purpose of giving leave to enter UK shall be presumed to be so imprinted (unless the contrary is proved);
    • proof that the defendant had leave to enter the UK shall lie on the defendant (although limited to the period 6 months before the date when proceedings commenced;
    • the burden of proof rests on the person making the assertion that he or she is a British citizen or entitled to an exception under the Act.

    It is important that where there is an immigration offence prosecutors approach the review process alive to any ECHR points that may arise out of either the legislation or application of the Code for Crown Prosecutors

    Evidential Considerations: Documentary Evidence

    Section 32(2) provides for documents made or given by the Secretary of State or signed by him or on his behalf, to be received in evidence. Thus correspondence from the Home Office to immigrants may be admissible in its own right.

    The admissibility of other records, documents etc are subject to the general law of evidence and in particular Sections 117 & 118 Criminal Justice Act 2003. This includes normal Home Office records not falling within the scope of Section 32.

    As mentioned above difficulties can arise when evidence is required as to the status of an illegal entrant who has already been deported. This evidence is obviously a vital ingredient of the offence in respect of a person charged with assisting a deported illegal immigrant.

    Evidence is usually adduced of a list of legal entrants from which, of course, the particular illegal entrant's name will be missing. The court is then asked to make the simple inference that absence from the list equates with illegality. It has been held that this could only be introduced by a Home Office official responsible for the compilation of the list and that the list was not automatically admissible: the negative inference was not an exception to the hearsay rule: (R v Patel [1981] 3 All ER 94).

    However Section 24 Criminal Justice Act 1988 will allow the admissibility of such a document and it would be open to the court to use it as evidence from which the existence of non-recorded fact could be drawn.

    Remember the rules of evidence concerning admissibility of acts or statements in the course and furtherance of the common purpose. What was said or done in the course of an attempt to facilitate entry might be admissible against a co-conspirator as being conduct in pursuance of the conspiracy, but what was said in the course of the investigation (e.g. to police constable or Immigration Officer) will only be evidence against the maker.

    Statutory Defence

    Section 31 of the Asylum and Immigration Act 1999 creates a statutory defence to charges listed in Subsection (3). It is based on the wording of Article 31 of the 1951 UN convention relating to the Status of Refugees (the Refugees Convention).

    In England, Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under:

    • Part 1 of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);
    • Section 24A of the 1971 Act (deception);
    • Section 26(1)(a) of the 1971 Act (falsification of documents).
    • Section 25(1) and (5) of the Identity Cards Act 2006 (possession of false identity documents)

    It is a defence for a refugee to show that he has come directly from a country where his life or freedom were threatened (within the meaning of the Refugee Convention); presented himself to UK authorities without delay; showed good cause for entry or presence and made claim for asylum as soon as practicable.

    If in coming from a country where life or freedom was threatened, the refugee stopped in another country other than UK, the subsection applies only if he could not reasonably be given protection under Refugee Convention in that other country.

    Effectively Section 31(8) of the Asylum and Immigration Act 1999 makes this statutory defence retrospective in its application.

    The scope of the defence and Article 31 of the UN Convention on Refugees 1951 has now been clarified by the R (on the application of Gjovalin Pepushi) v CPS [2004]. This has reaffirmed the position as stated in R (on the application of Hussain) v The Secretary of State for the Home Department and Others (Hussain) (26 June 2001), namely that the UN Convention with which we are concerned is not and never has been part of domestic law, save that in this particular respect Parliament has now enacted section 31. That being so, the court and, more to the point, the CPS in deciding whether to continue the prosecution, is necessarily obliged to have regard to the terms of the statute as laying down authoritatively the nature of this country's obligations under article 31.

    Joint Prosecutions

    In cases where there is a joint investigation with the Police and Immigration Service, the police will normally lead the investigation. Meetings at an early stage of the investigation or case preparation are recommended to outline steps that should be taken to agree case progression. There may also be a need to agree joint / shared disclosure arrangements.

    This does not inhibit prosecutors from requesting a case conference as part of the normal review process.

    Special Cases: Common Travel Area (CTA)

    The CTA is defined in Section 1(3) as the UK, the Channel Islands, The Isle of Man and The Republic of Ireland. The general principle is that there is no control over movement within CTA if it is only a local journey i.e. journey begins and ends within CTA and does not go outside it.

    As you would expect there are exclusions from the general principle of no control which may give rise to criminal liability under the Act. Should such a case arise, familiarise yourself with the categories of exclusions and additional restrictions regarding entry to the UK from the Republic of Ireland.

    Special Cases: EEC Nationals

    The Treaty of Rome has had a considerable impact on UK Immigration Law and the rights of EEC nationals in respect of free movement of labour will sometimes arise in the context of allegations of immigration.

    EU nationals exercising community rights of free movement do not require leave to enter -section 7 Immigration Act 1988. An EU national entering after an exclusion order was made against him can be prosecuted as an illegal entrant - R v Secretary of State ex p Mann Singh Shingara [1999] Immigration Appeal Reports.

    The European Court of Justice have stated that illegal entry or a failure to report their presence to the authorities does not affect an EC national's right of residence under community law. This does not prevent any member state from prosecuting such persons, provided the penalty is not so disproportionate to the gravity of the infringement such that it creates an obstacle to the free movement of people - Watson and Belmann [1976] ECR 1185.

    Procedure

    Time Limits

    No time limits apply to the either-way offences stated above.

    For summary offences, any summons or charge must ordinarily be laid within 6 months from the commission of the offence. However Section 28 of the 1971 Act provides in relation to all offences under the Act that the period within which proceedings may be brought can be extended to three years from the alleged commission of the offence; provided that within the extended period all information for a summary offence cannot be laid more than 2 months after the date certified by a Chief Officer of Police to be the date on which evidence sufficient to justify proceedings came to the notice of an officer of his force.

    Forfeiture

    Section 25C of the Immigration Act 1971 (inserted by section 143 Nationality and Immigration Act 2002) provides a power for the forfeiture of vehicles, ships or aircraft used in the commission of the following offences:

    • Section 25 Immigration Act 1971;
    • Section 25A Immigration Act 1971;
    • Section 25B Immigration Act 1971; and
    • Section 4 Asylum and Immigration (Treatment of Claimants etc) Act 2004

    For the offences not specifically covered by S25C, the general power to forfeit items used in the commission of a crime under section 143 Powers of Criminal Courts (sentencing) Act 2000 should be considered.

    Disqualification

    Under Section 146(1) of the Powers of Criminal Courts (Sentencing) Act 2000, the court by or before which a person is convicted of any offence committed after 31 December 1997 may, instead of or in addition to dealing with him in any other way, order him to be disqualified, for such period as it thinks fit, from holding or obtaining a driving licence

    These provisions came into effect on 1 January 2004 and are exercisable by all courts in England and Wales.

    Consideration should be given to an application for the disqualification of an offender who has used his vehicle to facilitate immigration crimes as this may prevent or disrupt their ability to repeat such offences frequently.

    Pre-charge advice

    S. 7 of the Asylum and Immigration (Treatment of Claimants) Act 2004 amended S. 3 (2) of the Prosecution of Offences Act 1985 and makes provision for the DPP to give advice to immigration officers on matters for which they have a power of arrest, prior to proceedings being instituted. For out of hours advice, immigration officers will contact CPS Direct in all cases. However in more complex ongoing investigations, immigration investigators have been advised that pre-charge advice should be obtained from duty prosecutors during daytime working hours and written advice endorsed on MG3 Forms.

    Disclosure

    As with any other area of crime, it is important that the issues of disclosure are resolved appropriately. Prosecutors and investigators should refer to the Disclosure Manual for details on issues around disclosure.

    Deportation

    Procedures in relation to deportation are dealt with under the heading <Sentencing and Ancillary Orders Applications, elsewhere in this guidance>

    Useful Links

    Annex 1 - "The Investigation and Prosecution of Immigration Offences: Protocol for Liaison between ACPO, Immigration Service and CPS."

    Sentencing and Ancillary Orders Applications

    Casework Bulletin - "Implementation of Nationality and Immigration Act 2002" of 2003

    HMSO website - All Acts post 1988 and statutory instruments.

    Immigration and Nationality Directorate (IND) website

    Disclosure - The Attorney General's Guidelines 2005