Abdi, R v

A failure to give the written notice required by section 6(2) of the Immigration Act 1971 does not automatically invalidate a criminal court’s recommendation for deportation. The court must determine whether Parliament intended that consequence, having regard to the statutory language, purpose and consequences of non-compliance. Actual prejudice, the offender’s awareness of the issue, and statutory safeguards are relevant.

A recommendation for deportation may properly be made although the sentencing court does not find the statutory significant-risk threshold for an extended sentence. The court may balance the risk of further offending against the serious harm likely to result if it occurs.

The appellant, a Somali national who had entered the United Kingdom unlawfully, pleaded guilty at Kingston upon Thames Crown Court to assaulting a child under 13 by penetration, contrary to section 6(1) of the Sexual Offences Act 2003. He received five years’ imprisonment and a recommendation for deportation.

A single judge refused permission to challenge the custodial term but referred the challenge to the deportation recommendation to the full court. There was no documentary proof that the appellant had received the standard written notice required by section 6(2) of the Immigration Act 1971. The appellant also contended that the recommendation was unjustified because this was an isolated offence and the recorder had not found a significant risk of serious harm for the purposes of section 229 of the Criminal Justice Act 2003.

The central issues were whether want of notice necessarily invalidated the recommendation and whether the recorder was entitled to recommend deportation on the facts.

1. Appeal dismissed. The absence of the statutory notice did not necessarily invalidate the recommendation for deportation.

2. Applying the approach in Soneji [2005] UKHL 49, the court rejected a rigid distinction between mandatory and directory requirements. The question was whether Parliament intended total invalidity to follow from a breach, assessed by reference to the language, scope and object of the statute, and the consequences of non-compliance.

3. Section 6(2) of the Immigration Act 1971 might protect against a recommendation being made against a British citizen, or give an offender time to address the merits of deportation. Neither purpose required automatic invalidity here. The appellant was not a British citizen; he and his advocate knew that a recommendation was in issue; and his advocate was able to advance all proper submissions. The court also noted the safeguards available after a recommendation and the impracticality of requiring an adjournment where an unopposed recommendation was sought.

4. Nazari [1980] 1 WLR 1366 explained the purpose of notice, but had not decided the consequence of failing to give it. It did not require the recommendation to be quashed.

5. The recorder’s conclusion under section 229 of the Criminal Justice Act 2003 did not govern the distinct question whether deportation should be recommended. For section 229, both a significant risk of further offending and a significant risk of serious harm were required. For deportation, the recorder could weigh the likelihood of reoffending and the gravity of the likely harm. He was entitled to find a real risk of grave harm to young children if the appellant reoffended and to conclude that continued presence in the United Kingdom was contrary to the public interest.

• Court of Appeal (Criminal Division): dismissed the appeal against the recommendation for deportation in this judgment, [2007] EWCA Crim 1913. A single judge had refused permission to appeal against the custodial term and referred the notice issue to the full court.
• Kingston upon Thames Crown Court: the appellant pleaded guilty on 23 October 2006 and, on 27 November 2006, was sentenced to five years’ imprisonment with a recommendation for deportation.