Javaherifard (R, on the application of) v Miller

For the purposes of Immigration Act 1971, a person entering the United Kingdom by land enters on crossing the land border. The special deeming rules for arrivals by ship or aircraft do not postpone that entry.

Section 25 covers assistance which facilitates a future breach of immigration law. It also covers knowing assistance to an illegal entrant’s continued unlawful presence. Such presence is a continuing breach of immigration law, although illegal entry is not itself a continuing criminal offence. Assistance given to regularise a person’s status lawfully does not facilitate that breach. Acts immediately after entry may, in an appropriate case, facilitate entry as well as presence.

The appellants, husband and wife, were convicted at Liverpool Crown Court of four offences under section 25 of the Immigration Act 1971. The allegations concerned their assistance to two Iranian nationals who travelled from the Republic of Ireland into Northern Ireland and then by ferry to Birkenhead using forged passports.

The Recorder ruled that entry occurred at Birkenhead. The Crown therefore presented the entry counts on that basis and the presence counts covered the earlier assistance. The appellants challenged both their convictions and, in one case, sought to revive an abandoned application for permission to appeal sentence.

The central issues were where entry occurred, whether continued unlawful presence could amount to a breach of immigration law for section 25, and whether the evidence supported the presence counts.

1. The appeals succeeded in part. The convictions on Counts 1 and 2, for facilitating a breach of immigration law controlling entry, were quashed. The appeals against Counts 3 and 4, concerning unlawful presence in the United Kingdom, were dismissed.

2. The Recorder’s direction that entry occurred at Birkenhead was wrong. The two Iranian nationals entered the United Kingdom when they crossed the land border into Northern Ireland. Section 11 of the Immigration Act 1971 postpones entry only in the defined circumstances of arrival by ship or aircraft. R v Naillie [1993] AC 674 concerned the routine position at an international port with an immigration-control area. It did not make presentation to an immigration officer a universal condition of entry.

3. The misdirection rendered the entry convictions unsafe. The Crown had confined those counts to alleged facilitation at Birkenhead, where there had been no entry. That ruling also affected the parties’ forensic focus and the jury’s directions on the true point of entry and the relevant mental element.

4. The presence counts disclosed an offence known to law. Section 25 does not require the breach of immigration law facilitated to be a separate criminal offence. The phrase being in the State extends to an illegal entrant’s presence without leave. Continued stay after illegal entry is a continuing breach of immigration law, despite the absence of a continuing offence under section 24(1)(a). The appellants’ assistance could therefore facilitate that breach.

5. The statutory knowledge requirement prevents the provision criminalising lawful advice or assistance directed to regularising a person’s status. On the evidence, there was ample material capable of showing that each appellant knowingly assisted the two men’s unlawful presence. The convictions on Counts 3 and 4 were safe.

6. The application to withdraw the abandonment of the sentence appeal was dismissed. The abandonment was deliberate and nothing showed it to be a nullity. In any event, the total sentence and recommendation for deportation were neither manifestly excessive nor inappropriate.

• Court of Appeal (Criminal Division): Allowed the conviction appeals in part, quashing Counts 1 and 2, and dismissed the appeals on Counts 3 and 4. It also dismissed the application to withdraw the abandonment of the sentence appeal.

• Liverpool Crown Court: The appellants were convicted on four counts under section 25 of the Immigration Act 1971 and sentenced to concurrent terms producing a total of three years’ imprisonment.