Kapoor & Ors v R

For section 25(2) of the Immigration Act 1971, an immigration law is a law which determines whether a non-national is lawfully or unlawfully entering, transiting through, or present in the state. It does not include every rule which regulates the process by which entry or leave may be sought.

Section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004, which penalises specified failures to possess an immigration document at an interview, does not itself control entitlement to enter or be in the United Kingdom. It therefore cannot found a section 25 facilitation charge. The specialised gain-based offence in section 25A also supported that construction.

The appellants were convicted at the Crown Court at Isleworth of conspiracies to assist unlawful immigration. The prosecution alleged that they enabled Afghan nationals to travel from Bangkok to London using the appellants’ boarding cards and false passports, after which the entrants claimed asylum without immigration documents.

The prosecution relied on section 25 of the Immigration Act 1971. It contended that the intended entrants would breach section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004. HHJ Matthews rejected the submission that the charged offence was unknown to law. The central issue on appeal was whether the section 2 offence was an immigration law which controlled entitlement to enter or be in the United Kingdom for section 25(2).

1. Appeals allowed on the principal ground. The court held that section 25(2) of the Immigration Act 1971 concerns a law determining whether a person is lawfully or unlawfully entering, transiting through, or present in the United Kingdom. It does not extend to all rules regulating the process by which immigration decisions are made.

2. Section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004 creates a document-related offence at a leave or asylum interview, subject to specified defences. It does not determine whether the person is lawfully entering or present in the United Kingdom. In particular, under section 11 of the Immigration Act 1971, an asylum claimant given temporary admission pending determination of the claim has not entered the United Kingdom for this purpose.

3. The construction was consistent with the purpose of the facilitation regime and avoided allowing the general section 25 offence to bypass section 25A, which specifically addresses facilitating an asylum-seeker’s arrival or entry and requires gain. The intended breach of section 2 could therefore not support the charged conspiracies under section 25.

4. By concession, the court substituted convictions for conspiracy to commit the section 2 offence. It found no merit in the complaint about the judge’s directions on mens rea. A prosecutorial comment on one appellant’s interview silence could not render the convictions unsafe in light of the judge’s directions.

5. Sentences of six years were replaced with concurrent sentences of two years. Sentences below six years were replaced with concurrent sentences of 21 months.

• Court of Appeal (Criminal Division): In Kapoor & Ors v R, [2012] EWCA Crim 435, the court allowed the appeals on the principal ground, substituted convictions for conspiracy to commit the section 2 offence, and reduced the sentences.
• Crown Court at Isleworth: HHJ Matthews convicted the appellants of conspiracies to assist unlawful immigration and upheld the prosecution’s submission that the charged offence was known to law.