Dhall v R

For an offence under section 25 of the Immigration Act 1971, immigration law controlling entitlement to be in the State includes the statutory controls governing leave to remain. Knowingly submitting false documents which procure an extension of leave may therefore facilitate a breach of immigration law, even though the applicant had initially entered lawfully.

A properly drafted count is not invalid because it does not identify the particular immigration law relied on, where no particulars were sought and the prosecution made no material representation on which the defendant acted to his detriment.

The appellant, a regulated immigration adviser, pleaded guilty at Harrow Crown Court to assisting unlawful immigration contrary to section 25(1) of the Immigration Act 1971. He had prepared and submitted false evidence of earnings in support of Tier 1 applications by Indian nationals seeking extensions of leave to remain.

He appealed against conviction. He contended that the prosecution had impermissibly changed its case by relying on the statutory controls in sections 1 and 3, rather than on section 24A(1), and that the relevant immigration law had not been sufficiently identified. The central issue was whether the false applications facilitated breaches of immigration law within section 25(2).

1. Appeal dismissed. The count was properly drafted and no request for further particulars had been made. The prosecution had not represented that it relied on section 24A(1), so any unexpressed view held by those drafting or presenting the case could not have induced detrimental reliance or an abuse of process.

2. Sections 1(2) and 3(1)(b) of the Immigration Act 1971 control a non-British citizen’s entitlement to be in the United Kingdom through the grant of leave. The appellant knowingly submitted false documents to improve the prospects of non-European Union nationals obtaining extensions of leave. Whenever an extension was granted, those acts facilitated a breach of those immigration laws and satisfied section 25(1).

3. The expression be in the State in section 25(2) is not confined to a person who overstays or breaches existing conditions of leave. Applying the reasoning in R v Javaherifard [2005] EWCA Crim 3231, it also covers a person whose continued lawful presence is obtained by deception through a fraudulently supported application for further leave.

4. The court did not need to decide whether an unsuccessful fraudulent application also involved a breach of immigration law. The conceded position concerning applications which were granted was sufficient to sustain the conviction.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2013] EWCA Crim 1610.

• Court of Appeal (Criminal Division): the Full Court had previously dismissed the renewed sentence appeal in [2011] EWCA Crim 2774 and the appeal against the confiscation order in [2013] EWCA Crim 892.

• Harrow Crown Court: the appellant pleaded guilty on 17 February 2011 to assisting unlawful immigration and was sentenced to six years’ imprisonment on 29 March 2011.