Mabengo, R. v

Use of a deliberately false passport to conceal an immigration status and obtain or retain employment is a serious identity-document offence. Sentencing guidance for false passports is not confined to their use to obtain entry to the United Kingdom. The statutory maximum under Identity Cards Act 2006, section 25(1)(a), is a relevant sentencing factor, though it does not dictate the appropriate term.

Before making a deportation order, the court must carefully balance the seriousness of the offence against the offender’s mitigation. Where that exercise has not been carried out and the appellate court lacks sufficient information to perform it, the deportation order should be quashed.

Four nationals of the Democratic Republic of the Congo, each a failed asylum seeker who had renewed an asylum application, pleaded guilty at Cardiff Crown Court to possessing false passports with intent to use them to establish registrable facts, contrary to section 25(1)(a) of the Identity Cards Act 2006.

They had used obviously forged Portuguese or French passports in false names to obtain employment by presenting themselves as entitled to work in the United Kingdom. Each received 12 months’ imprisonment and a recommendation for deportation.

They appealed against sentence. The issues were whether the custodial terms were excessive when compared with earlier false-document cases, and whether the deportation orders were properly made.

1. The appeals were allowed in part. The 12-month sentences were upheld, but the deportation orders were quashed.
2. The appellants knowingly used deliberately created false passports to deceive employers about their entitlement to work after their asylum applications had failed. This was a serious use of an identity document. The sentencing guidance concerning false passports was not confined to passports used to gain entry to the United Kingdom.
3. The court rejected the contention that the case concerning false immigration letters established a general principle requiring a six-month sentence whenever documents were used to obtain work. That case was materially different. It involved letters rather than false passports and a person lawfully permitted to enter the country. The 10-year maximum under section 25(1)(a) of the Identity Cards Act 2006, contrasted with the two-year maximum for simple possession, was a relevant sentencing consideration. It did not automatically require a higher sentence, but supported the conclusion that 12 months was neither manifestly excessive nor wrong in principle.
4. Before ordering deportation, the sentencing judge had to conduct a careful balancing exercise between the seriousness of the particular offence and the offender’s mitigation. That exercise had not been carried out, or had been carried out insufficiently. The Court of Appeal had too little information to undertake it itself. The orders for deportation were therefore quashed, leaving any subsequent action to the Secretary of State.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 1699, the court dismissed the challenges to the custodial sentences but allowed the appeals against the deportation orders and quashed those orders.
• Cardiff Crown Court: The appellants pleaded guilty to possessing false identity documents with intent to use them. Each was sentenced to 12 months’ imprisonment and recommended for deportation.