Ding, R v

Offences under section 24A of the Immigration Act 1971 do not carry a generally lower level of culpability merely because deception is used to avoid detection rather than to obtain leave. Both forms of conduct undermine border control, and sentence depends on the facts. Where an overstayer premeditatedly uses a false identity document to evade immigration control, the deterrent sentencing guidance in R v Ali [2001] EWCA Crim 2874 applies. The more lenient approach to documents used solely for work or banking purposes does not apply. The higher maximum for section 25 offences under the Identity Cards Act 2006 does not establish that they are generically more serious, because the offences address different mischiefs.

The appellant, a Malaysian national who had overstayed his visa, pleaded guilty at the first opportunity to securing or seeking to secure the avoidance of enforcement action by deception, contrary to section 24A(1)(b) of the Immigration Act 1971.

When stopped by border and police officers, he produced a purchased false identity photocard which purported to translate a Chinese driving licence. His true identity was established by fingerprinting. At Luton Crown Court, he received 12 months’ imprisonment, less time on remand.

He appealed by leave of the Single Judge. He contended that an offence under section 24A(1)(b) was generally less serious than one under section 24A(1)(a), and that offences involving false identity documents were generically more serious. The central issue was the applicable sentencing guidance for the deliberate use of a false document to evade immigration control.

1. Appeal dismissed. The sentence of 12 months’ imprisonment was neither wrong in principle nor manifestly excessive.
2. The court rejected the submission that section 24A(1)(b) offences are generally less serious than section 24A(1)(a) offences. Section 24A(1)(a) itself treats seeking leave to enter and seeking leave to remain alike. Nor is there a general distinction between using deception to obtain permission to remain and using it to prevent discovery of unlawful presence. In each instance the mischief is the undermining of border control.
3. The appellant’s conduct fell within the R v Ali [2001] EWCA Crim 2874 type of case. He had deliberately acquired and used a fake document suggesting both a different identity and lawful possession of a driving licence, in order to evade immigration control. Such offending properly attracts deterrent sentencing.
4. The court applied the distinction identified in R v Ovieriakhi [2009] EWCA Crim 452. A lesser sentence may be justified where a false passport is used for a purpose not directly concerned with immigration control, such as obtaining employment or opening a bank account. That was not this case. The appellant’s purpose was to avoid detection as an overstayer, so the guidance in R v Ali, reaffirmed in R v Ovieriakhi and R v Shawnm Mohammed [2009] EWCA Crim 2176, was applicable.
5. The court also rejected a generic comparison with section 25 of the Identity Cards Act 2006. Its higher maximum sentence must accommodate grave cases such as commercial manufacture and distribution of false documents. It does not mean that every individual offence under that provision is more serious than a section 24A immigration deception offence.
6. The guilty plea and relatively good character did not render the 12-month sentence excessive. It was within the applicable guidance range.

• Court of Appeal (Criminal Division) — By judgment dated 16 July 2010, [2010] EWCA Crim 1979, the court dismissed the appeal against sentence.
• Luton Crown Court — On 7 May 2010, HHJ Foster imposed 12 months’ imprisonment, less time on remand, following a guilty plea to an offence under section 24A(1)(b) of the Immigration Act 1971. No citation was stated.