Ahaiwe, R. v

A recommendation for deportation requires a case-specific assessment of whether the offender’s continued presence is detrimental to the country. Fraudulent use of identity documents to conceal unlawful entry or residence undermines immigration control and is relevant to that assessment. It is not, however, determinative and does not make a recommendation automatic.

Where the offence does not itself call for a recommendation, and the sentencing judge cannot usefully add to the material available to the Home Secretary, deportation should be left to the Home Secretary. The court should have regard to the seriousness and circumstances of the offending, including factors bearing on the offender’s position.

The appellant pleaded guilty at Canterbury Crown Court to possessing a false identity document contrary to section 25(1)(a) of the Identity Cards Act 2006. She had used a false Nigerian passport, carrying an endorsement of indefinite leave to remain, to obtain work after entering the United Kingdom unlawfully.

She received seven months’ imprisonment. The judge also recommended deportation, giving no reasons beyond seeing no reason not to make the recommendation. Her appeal was confined to that recommendation.

The central issue was whether the use of false documents to obtain employment, in the circumstances of an unlawful entrant, justified a judicial recommendation for deportation.

1. Appeal allowed. The recommendation for deportation should not have been made.

2. The governing inquiry, derived from Carmona [2006] EWCA Crim 508, is whether the offence and other material show that the offender’s continued presence is detrimental to the country. A sentencing court may make a recommendation despite a sentence below the Home Secretary’s stated rule of thumb, but should be cautious and must be satisfied that continued presence is against the public interest.

3. There was no inconsistency between Carmona and R v Benabbas [2005] EWCA Crim 2113. They addressed different factual settings. Where the gravamen of the offence is abuse of immigration law through forged or stolen passports, the detriment inquiry is closely connected with public order and confidence in the passport system.

4. The appellant’s false document use was a detriment to society because it concealed her unlawful entry and undermined immigration control. That feature was relevant, but it was not dispositive. The court declined to treat the observation in R v Nazari that deportation should normally be recommended for an illegal immigrant as making a recommendation automatic in a case of this kind.

5. This offending was less serious than that in R v Benabbas. The appellant used the document to obtain work, admitted the true facts when arrested, and had no additional aggravating features. Personal factors were better assessed by the Home Secretary. As the offence did not itself call for a recommendation and the judge could add nothing useful to the material before the Home Secretary, the question of deportation was to be left to the Home Secretary.

• Court of Appeal (Criminal Division). Allowed the appeal against the recommendation for deportation: [2007] EWCA Crim 1018.
• Crown Court at Canterbury. Following a guilty plea, imposed seven months’ imprisonment for possession of a false identity document and recommended deportation.