Rostamkhany, R v

A sentencing court must apply the domestic statutory scheme governing false identity documents and refugee defences. A wider international treaty obligation cannot create a legitimate expectation that United Kingdom authorities will not give full effect to that legislation.

Custody remains subject to the general seriousness threshold. However, the use of a false identity document with the intention of gaining entry to the United Kingdom will normally justify imprisonment. In refugee cases, the court must balance immigration control with the realities faced by genuine refugees and impose a sentence reflecting the offender’s actual criminality and personal mitigation.

The applicant pleaded guilty at Lewes Crown Court to possessing or controlling a false document with intent to use it to establish a registrable fact, contrary to the Identity Cards Act 2006. He had presented a false Italian passport on arrival at Gatwick Airport, later claimed asylum, and was sentenced to eight months’ imprisonment.

He appealed against sentence. He contended that the domestic refugee defence was narrower than article 31 of the Status of Refugees Convention and that the Convention should affect his sentence. He also relied on his youth, good character, asylum claim, and the circumstances in which he used the passport.

1. Appeal dismissed. The sentencing judge’s approach and the eight-month sentence could not be faulted.

2. The court was required to apply the domestic scheme in the Identity Cards Act 2006 and the Immigration and Asylum Act 1999. Although section 31 of the 1999 Act was narrower than article 31 of the Status of Refugees Convention, that did not permit the court to apply the Convention instead of legislation enacted by Parliament. Nor could a person in the applicant’s position have a legitimate expectation that the authorities would fail to give full effect to United Kingdom law. The remaining question was therefore one of sentence.

3. The applicable sentencing principles were these. Custody may be imposed only where the offence is sufficiently serious that neither a fine nor a community sentence is justified. Use of a false identity document, with the requisite intention, to seek entry to the United Kingdom will normally be serious enough to warrant custody: R v Kolawole (2005) 2 Cr.App.R (S) 14. The court must nevertheless preserve a responsible balance between immigration control and the position of genuine refugees who may arrive using false documents: R v Mohammed (Farik Said) [2001] EWCA Crim 2332. Sentence must reflect the offender’s degree of criminality.

4. R v Wang [2005] 2 Cr.App.R (S) 79 concerned a different offence and did not alter that approach. The judge had taken account of the applicant’s mitigation, including that the sentence was lower than would ordinarily be imposed. The applicant had nonetheless attempted to pass himself off as the holder of a genuine Italian passport rather than immediately claiming asylum.

5. No order was made for costs.

• Court of Appeal (Criminal Division). The appeal against sentence was dismissed: [2007] EWCA Crim 3426.

• Lewes Crown Court. On 8 August 2007, following a guilty plea, the applicant was sentenced to eight months’ imprisonment for the false-document offence.