Isabella Kirwan secures a suspended sentence for an offence of obtaining leave to remain in the UK by deceptive means contrary to section 24A(1)(a) of the Immigration Act 1971.
Summary
The Defendant is a Polish national. He obtained status under the EU Settlement Scheme by deceptive means. Specifically, he made false declarations by failing to disclose his previous criminal history and previous identities when asked to do so. These declarations would have likely led to his application being refused as he was not entitled to leave to remain in the UK, being subject to an extant deportation order which had been in force since 1999.
Offence of Deception under Section 21A(1)(a) of the Immigration Act 1971
There are no sentencing guidelines for this offence. The offence is either-way and carries a maximum sentence of two years’ custody on indictment.[1] There are two statutory defences available: (i) section 31 of the Immigration and Asylum Act 1999 (which gives effect to Article 31(1) of the Refugee Convention) and (ii) section 45 of the Modern Slavery Act.
The main authorities in deception cases are R v Ali [2001] EWCA Crim 2874; [2002] 2 Cr.Ap.R(S) 32 and R v Heng Pit Ding [2010] EWCA Crim 1979.[2] In R v Heng Pit Ding, the defendant was sentenced for securing or seeking to secure the avoidance of an enforcement action contrary to section 24A(1)(b) of the Immigration Act 1971. He received a 12-month custodial sentence.
The defendant in Ali claimed asylum using a false nationality. He was convicted for seeking to obtain leave to enter the UK by deception contrary to section 24A(1)(a) of the 1971 Act. In Ali, the Court of Appeal reduced the defendant’s custodial sentence reduced from 18 months to 12 months’ imprisonment, observing that it was necessary to leave ‘a ceiling for the most serious cases’ [§18]. However, the Court of Appeal also confirmed that ‘the message has to go out that offences of this kind will be treated by the court very seriously.’ [§18]. It looked to ‘passport offences’ for guidance, applying the findings of Keene J in the case of R v Walker [1999] 1 Cr App R(S) 42, and Rose LJ in R. v. Daljit Singh [1999] 1 Cr App R(S) 490, who noted that, ‘although a plea of guilty will always attract an appropriate discount, previous good character and personal circumstances of mitigation are of very limited value in cases of this kind which should generally be sentenced on a deterrent basis.’ [§17].
Despite the deterrent approach to sentencing, Isabella managed to persuade the Court to impose a Suspended Sentence Order, with only one condition attached; unpaid work.
Isabella was instructed in this case by Aleksandra Kowalik of Kowalik Law.
To instruct Isabella in a similar case, please contact: clerks@guernica37.com.
To find out more about Isabella Kirwan’s practice, please click here. Isabella Kirwan, Barrister, Guernica 37 Chambers.
[1] CPS Guidance, ‘Immigration - Annex 1 Tables of Immigration Offences’, undated: https://www.cps.gov.uk/legal-guidance/immigration-annex-1-tables-immigration-offences (last accessed on 8 November 2023).
[2] R v Heng Pit Ding [2010] EWCA Crim 1979 summarised a number of sentencing principles by reference to previous cases, including R v Ovieriakhi [2009] EWCA Crim 452 and R v Kolawole [2005] 2 Cr. App. R (S).