Carmona v R.

A sentencing court may recommend deportation under Immigration Act 1971 where the offending and available material show that the offender’s continued presence is contrary to the public interest. The custodial term is an indication of seriousness, not a mathematical threshold.

A recommendation is not itself an interference with Article 8 rights. Where offending justifies a recommendation, the sentencing court should not assess possible effects on the offender or family under Articles 2, 3 or 8. Those matters are for the Secretary of State and, on appeal, the specialist immigration tribunal nearer to any proposed deportation.

For a non-custodial offender, detention pending a deportation decision should be directed only where reasonably necessary, including because of a real risk of absconding.

The appellant, a Portuguese national, pleaded guilty at Harrow Crown Court to six counts of handling stolen goods and eight counts of forgery. Thirty-nine further forgery offences were taken into consideration. He received 15 months’ imprisonment and a recommendation for deportation.

He appealed against the recommendation, contending that the judge had failed adequately to consider the effect of deportation on his partner and children. The appeal raised the effect of the Human Rights Act 1998 and the European Convention on Human Rights on the criminal court’s role when considering a deportation recommendation.

1. Appeal dismissed. The appellant’s extensive and financially substantial dishonesty entitled the judge to conclude that his continued presence in the United Kingdom was contrary to the public interest. The relatively lenient 15-month sentence did not prevent that conclusion.

2. The governing domestic inquiry, derived from Nazari [1980] 1 WLR 1366, is whether the offender’s continued presence is detrimental to the country or contrary to the public interest. Serious offending may itself justify that conclusion. Repeated less serious offending may also do so where the material cogently shows likely repeated reoffending. The sentence is relevant only as an indication of seriousness. A recommendation is not punishment and does not justify reducing the otherwise proper sentence.

3. The incorporation of Convention rights changed the former approach requiring a sentencing judge to balance the public benefit of deportation against harm to innocent family members. A recommendation is only a preliminary step and does not itself interfere with the offender’s Article 8 rights. It is unnecessary and undesirable for the sentencing court to assess the offender’s or family’s rights under Articles 2, 3 or 8. Criminal courts are not equipped to determine prospective foreign conditions, and the Secretary of State and the specialist tribunal will address those matters if a deportation order is made.

4. In cases involving a non-custodial sentence, paragraph 2(1) of Schedule 3 to the Immigration Act 1971 requires particular care. The court should direct against detention pending the Secretary of State’s decision where detention is not reasonably necessary, including where there is no real risk of absconding.

5. When assessing whether to recommend deportation, the sentencing judge may consider both offences of conviction and offences taken into consideration. The judge’s recommendation therefore stood.

• Court of Appeal (Criminal Division). In [2006] EWCA Crim 508, the court dismissed the appeal against the recommendation for deportation.

• Harrow Crown Court. His Honour Judge Moss sentenced the appellant to 15 months’ imprisonment for dishonesty offences and made a recommendation for deportation.