Bina, R. v

Section 25(1) of the Immigration Act 1971 contains no implied exemption for people seeking asylum. It may apply where a person facilitates an asylum seeker’s unlawful entry into a member state, including by forged documents, rather than a presentation to an immigration officer to claim asylum.

A possible parallel offence under section 25A does not prevent a charge under section 25(1). A certificate under section 25(3) is a conclusive means of proving foreign law when produced, but is not the exclusive means of proof. Foreign law may instead be proved by expert evidence or admission.

The applicant was convicted in the Crown Court at Kingston upon Thames of conspiracies to facilitate breaches of immigration law, substantive facilitation offences involving asylum seekers, and converting criminal property. He received a total sentence of nine years’ imprisonment.

The Crown alleged that he ran a people-smuggling enterprise for gain, using the United Iran Party as a front. The defence contended that his assistance to Iranian nationals was humanitarian and did not generate criminal proceeds.

He renewed applications for leave to appeal against conviction and sentence after a single judge had refused them. The conviction application challenged the availability and form of the section 25 charge, proof of Spanish immigration law, and the use of evidence connected with a fraud count withdrawn from the jury. The sentence application challenged the assessment of his role, gain and mitigation.

1. The renewed applications for leave to appeal against conviction and sentence were refused.

2. Section 25(1) of the Immigration Act 1971 does not exclude an asylum seeker from the class of persons whose breach of immigration law may be facilitated. Its purpose includes conduct facilitating illegal entry into a member state, even if the entrant may ultimately have a genuine asylum claim. R v Kapoor [2012] EWCA Crim 435 did not assist the applicant. That case concerned people presenting themselves to immigration officers and claiming asylum, whereas the Crown case here alleged entry into Spain by forged documents.

3. The fact that the facts might also have supported a conspiracy charge relating to section 25A did not invalidate the charge of conspiracy to commit the section 25(1) offence. Nor was this a conspiracy to commit an overseas offence under section 1A of the Criminal Law Act 1977. The applicant’s alleged acts were carried out in the United Kingdom and the underlying facilitation offence was domestic, although the immigration law to be breached was that of another member state.

4. Section 25(3) provides a conclusive evidential route where a member-state government certificate is produced. It does not make that route exclusive. The content of foreign law could be proved by expert evidence or, as here, by an admission of the relevant Spanish provisions. There was also evidence capable of showing contraventions of Spanish law.

5. The withdrawal of the fraud-related count did not render the briefcase material and alleged fabricated asylum histories irrelevant to the remaining counts. The jury could use that evidence to determine whether the Crown’s alleged criminal enterprise existed. Any inconsistency in the summing-up caused no harm.

6. The sentencing judge was entitled to find that the applicant was the United Kingdom head of a long-running enterprise, motivated by gain and operating on a grand scale. A total sentence of nine years, though severe, was not excessive.

• Court of Appeal (Criminal Division) Refused the applicant’s renewed applications for leave to appeal against conviction and sentence.
• Crown Court at Kingston upon Thames On 14 December 2012, convicted the applicant after trial of facilitation, conspiracy and criminal-property offences. On 18 December 2012, imposed concurrent sentences producing a total of nine years’ imprisonment.
• Single judge Refused leave to appeal against conviction and sentence, prompting the renewed applications to the full court.