Olajide, R v

A custodial sentence does not automatically justify a recommendation for deportation. The decisive question is whether the offender’s continued presence in the United Kingdom would be detrimental to it.

The sentencing court must conduct a fact-sensitive balancing exercise. It must disregard the offender’s immigration status and weigh the nature and purpose of the offending against good character, personal mitigation and other relevant circumstances. A recommendation cannot stand where that exercise has not been performed.

The appellant, a Nigerian national, pleaded guilty at Blackfriars Crown Court to possessing a forged Dutch passport with intent to establish registrable facts. He received ten months’ imprisonment and a recommendation for deportation.

The imprisonment term was not challenged. The appeal concerned only the recommendation. The appellant relied on his good character, work history, relationship and the evidence that he had obtained the passport to secure employment rather than to enter or remain in the United Kingdom. The central issue was whether the sentencing judge had been entitled to find that his continued presence would be detrimental to the United Kingdom.

Disposition

1. The appeal was allowed. The recommendation for deportation was set aside. The unchallenged sentence of ten months’ imprisonment remained in force.

2. Imprisonment for an offence does not itself require a deportation recommendation. Although a non-British offender convicted of an imprisonable offence may be the subject of such a recommendation, it should be made only where the offender’s continued presence in the United Kingdom would be detrimental to it. Serious offending may justify a compelling inference of detriment, but less serious offending may not.

3. The court endorsed the fact-sensitive balancing exercise described in Araoye [2007] EWCA Crim. 1922 and Bakare and Bakare [2008] EWCA Crim. 950. The nature and purpose of the false-passport use, the offender’s character and personal circumstances, and the question of detriment must be weighed. A passport used to obtain work is materially different from one used to gain entry to, or maintain status in, the United Kingdom.

4. The appellant’s unlawful immigration status was not a relevant consideration and had to be ignored. On the available evidence, he was of good character, had worked in the United Kingdom, had a British partner, and had acquired the false passport for employment.

5. The sentencing judge had not undertaken the required balancing exercise. In consequence, the Court of Appeal could not support the finding of detriment or the resulting recommendation.

• Court of Appeal (Criminal Division): Allowed the appeal against the recommendation for deportation and set it aside.
• Blackfriars Crown Court: Following a guilty plea, imposed ten months’ imprisonment for possession of a false identity document with intent to establish registrable facts and made a recommendation for deportation.