Attorney-General's Reference No 28 of 2014

For offences facilitating a breach of immigration law, sentence must reflect the full gravity of conduct which circumvents immigration controls. A deterrent sentence will often be required. Relevant considerations include repetition, duration, commercial motivation, numbers involved, organisation, recruitment, the offender’s role, and exploitation of vulnerable workers.

Conduct should not be treated merely as a fraud upon client companies where false documents and unlawful labour are used knowingly to defeat immigration-control mechanisms for profit. For an indicted conspiracy spanning a change in the victim-surcharge regime, ambiguity should be resolved in the way least punitive to the offender. The applicable date is the first alleged relevant act.

The Solicitor General referred the offender’s sentence under Criminal Justice Act 1988, section 36. Following a three-month trial at Woolwich Crown Court, the offender received four-and-a-half years’ imprisonment for conspiracy to facilitate breaches of immigration law, with a concurrent sentence for using unlicensed security operatives.

Through security businesses, he supplied construction sites with workers who often had no right to work, used false identity and licence documents, and paid exploitative wages. The conspiracy continued from April 2007 to October 2012 and generated substantial income.

The central questions were whether the sentence was unduly lenient and which victim-surcharge regime applied to a conspiracy that straddled 1 October 2012.

1. The court allowed the reference and increased the sentence on the conspiracy count from four-and-a-half years to eight years’ imprisonment. The original sentence did not adequately reflect the seriousness and aggravating features of the offending.

2. Sentencing for facilitating a breach of immigration law must reflect the gravity of the particular conduct. The court endorsed the sentencing considerations identified in Le and Stark [1999] 1 Cr.App.R (S) 422, as developed in Cina [2012] EWCA Crim. 2279. They include whether the conduct was repeated, its duration, commercial or humanitarian motivation, the number and relationship of those involved, organisation, recruitment, the offender’s role, and exploitation or pressure. The list is not exhaustive.

3. The offending was not properly characterised primarily as fraud on the client companies. The businesses knowingly used false documents and supplied persons without a right to work in order to circumvent mechanisms forming part of immigration control. The prolonged, organised and profitable conspiracy involved a large number of workers, deliberate falsification of documents, a leading role by the offender, recruitment of others, and exploitation of workers unable to bargain. Those features substantially aggravated the offence, although it was less serious than facilitation of illegal entry.

4. The court quashed the £120 victim-surcharge order. Paragraph 7(2) of the 2012 Order (SI 2012 No 1696) did not clearly address an offence of conspiracy spanning the commencement date. Following Bailey and others [2013] EWCA Crim. 1551, the ambiguity had to be resolved in the way least punitive to the offender. For a conspiracy count, the relevant date is the first date on which an alleged relevant act occurred. As that date preceded 1 October 2012, the 2007 regime applied and no surcharge was payable.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, the court allowed the reference, increased the conspiracy sentence to eight years, and quashed the victim-surcharge order: [2014] EWCA Crim 1723.

• Crown Court at Woolwich: On 14 March 2014, following a jury trial, the offender was sentenced to four-and-a-half years’ imprisonment for conspiracy to facilitate a breach of immigration law, with a concurrent two-year sentence for using unlicensed security operatives. A £120 victim surcharge was imposed.