Kishientine, R v

Where an offence of obtaining leave to enter by deception has been completed on entry, and the statutory conditions for the refugee defence are not satisfied, a sentencing court need not routinely assess the genuineness or strength of a later asylum claim. That assessment belongs to the Home Office and its appellate system.

Judges must consider all relevant circumstances, but the public interest in maintaining immigration control justifies firm deterrent sentences for offences under section 24A of the Immigration Act 1971. A genuine or apparently genuine asylum claim does not itself require sentencing as if the offender had a good asylum claim.

The appellant, a citizen of the Democratic Republic of Congo, pleaded guilty at Solihull Magistrates’ Court to obtaining leave to enter and remain in the United Kingdom by deception, contrary to section 24A of the Immigration Act 1971. She had entered using a false passport and visa, then made an asylum claim using further false details before admitting the deception.

She was committed to the Crown Court at Warwick for sentence and received nine months’ imprisonment. On appeal against sentence, she relied on the asserted genuineness of her asylum claim, her claimed experiences in Congo, her guilty plea and lack of previous convictions. The central issue was whether those matters required a materially lower sentence notwithstanding the inapplicability of section 31 of the Immigration and Asylum Act 1999.

1. Appeal dismissed. The nine-month sentence for obtaining leave to enter by deception was not excessive.

2. The offence under section 24A of the Immigration Act 1971 was complete when the appellant obtained entry by deception. The conditions for the statutory refugee defence in section 31 of the Immigration and Asylum Act 1999 were not satisfied. They required conduct which had not occurred and were intended to cover a materially different situation.

3. The Court was not required to resolve the genuineness or strength of the appellant’s asylum claim. That question was for the Home Office and the statutory appellate system. Nor was the sentencing judge required to sentence her as a person with a good asylum claim merely because the claim was said to be genuine.

4. All relevant circumstances must be considered when sentencing for a section 24A offence. However, effective immigration control is a substantial public interest and supports firm deterrent sentences. The Court drew support from R v Nasir Ali [2002] 2 Cr App R(S) 32 and from R v Kolawole (The Times, 16 November 2004), both of which emphasised deterrence in immigration-related deception and false-passport offending.

5. The guilty plea, absence of previous convictions and asserted asylum circumstances did not justify reducing the sentence imposed.

• Court of Appeal (Criminal Division) — dismissed the appeal against the nine-month sentence: [2004] EWCA Crim 3352.
• Crown Court at Warwick — sentenced the appellant to nine months’ imprisonment after committal for sentence.
• Solihull Magistrates’ Court — accepted the appellant’s guilty plea to the section 24A offence and committed her for sentence.