Ali, R v

An offence of facilitating a breach of immigration law under Immigration Act 1971 section 25 may be committed even though the facilitated offence is never completed. It is sufficient that the defendant’s acts facilitate a future breach.

Whether conduct facilitates the breach is ordinarily a factual question for the jury. Acts which make a sham marriage easier to arrange, including procuring a proposed spouse and preparing or submitting a false application for a certificate of approval, are capable of amounting to facilitation. The ordinary meaning of “facilitates” requires no detailed judicial definition.

The respondent solicitor appealed convictions for two counts of assisting unlawful immigration, contrary to section 25 of the Immigration Act 1971, and one count of encouraging or assisting an offence under section 24A of that Act.

The Crown alleged that he helped two Pakistani clients obtain immigration status through intended sham marriages to EEA nationals. It relied on his alleged role in finding prospective brides and in preparing and submitting false applications for certificates of approval. A further count arose from covertly recorded meetings with an undercover journalist.

The principal issue was whether the alleged preliminary acts could in law facilitate a breach of immigration law although no sham marriage took place.

1. Appeal dismissed. The convictions on all counts were safe.

2. Section 24A(1) of the Immigration Act 1971 criminalised, at the least, seeking by deception to secure avoidance of enforcement action. A person could therefore commit that offence without completing a sham marriage. Independently, section 25(1) permitted conviction for facilitation although the facilitated section 24A offence had not actually been committed.

3. The court followed the reasoning in R v Jayaherifard & Miller [2006] Imm AR 185, and the supporting authorities, that proof of an actual completed immigration breach was unnecessary. A contrary construction would render section 25 ineffective where the intended parties withdrew at the altar after the facilitator had already performed the relevant acts.

4. The acts alleged were capable of facilitating immigration offences. The evidence permitted the jury to find that the respondent helped procure proposed brides and was instrumental in creating and submitting false certificate-of-approval applications. Each act made an intended sham marriage easier to arrange. Whether the acts in fact facilitated a breach was for the jury. The statutory word required no detailed direction beyond its ordinary meaning.

5. There was sufficient evidence from which the jury could infer that each client intended a sham marriage. It could assess one client’s intention from all the evidence and infer the other client’s intention from the proposed bride’s evidence that she did not intend a genuine, settled relationship. As the challenges to counts 3 and 4 failed, there was no independent basis to challenge count 6.

• Court of Appeal (Criminal Division): dismissed Ali’s appeal against conviction in [2015] EWCA Crim 43.

• Crown Court: Ali was convicted on 28 March 2014 of two counts of assisting unlawful immigration and one count of encouraging or assisting an offence. On 22 April 2014 he received six years’ imprisonment on the former counts and 18 months concurrently on the latter count.