Javaherifard (R, on the application of) v Miller

The Appellants were convicted on 2^nd February 2005 at Liverpool Crown Court before Mr Recorder John Jones QC and a jury on four counts of knowingly facilitating a breach of immigration law contrary to s25 of the 1971 Act, as substituted by the Nationality, Immigration and Asylum Act 2002 with effect from 10^th February 2003. Two counts related to facilitating the entry to the UK of two Iranian nationals and two related to facilitating the same two Iranian nationals being in the UK. The Appellants were each sentenced to two years imprisonment on the first two counts which related to entry and to three years concurrent on the second two counts, which related to the Iranians being in the UK.

Both Appellants appeal against conviction and Javaherifard seeks to renew his application for leave to appeal against sentence and for those purposes seeks leave to set aside its earlier abandonment by him.

This appeal raises questions as to the interpretation and application of the provisions of s25 Immigration Act 1971.

The Appellants are husband and wife. Javaherifard is an Iranian national who is seeking leave to remain in the UK as the spouse of Joanne Miller who is a British citizen. One of the two Iranian nationals whose entry gives rise to these offences is his brother. The other was at least an acquaintance of the brother. These two arrived in the UK in October 2003, crossing the border by train from the Republic of Ireland into Northern Ireland. That same day, they went from Belfast to Birkenhead by ferry where, upon disembarkation, their passports were checked by police and found to be forgeries. One was a Swiss passport and the other Austrian; both were in false names. Neither of the two therefore had the necessary visa or leave as Iranian nationals to enter the UK. They were arrested and detained. The next day they claimed asylum before an Immigration Officer. It had been assumed for much of the trial that the officials who questioned the two at Birkenhead were Immigration Officers but it was ascertained that they were in fact police officers on anti-terrorist duties. It was alleged that Miller had gone to Dublin to meet the two, travelled with them by train into Northern Ireland and then from Belfast to Birkenhead, supplying money, purchasing travel tickets with them, guiding them on the route to Birkenhead from Belfast and being prepared to help them in answering queries. It was alleged that Javaherifard had stayed in Newcastle but had organised, over the telephone, the help given by Miller and the travel arrangements of the two entrants at least from the Republic of Ireland on to the UK and England.

The indictment as originally drawn reflected something of the previous legislation, but the substituted provisions of s25 of the 1971 Act are different and simplify the relevant criminal legislation. The original indictment contained a pair of counts against each defendant; these related to the entry of the two Iranians and used the language of the earlier statutory provisions. The Crown applied to amend the indictment to reflect the substituted provisions and by adding two further pairs of counts which reflected the two further areas of immigration control: presence and transit. The Recorder rightly took the view that on the facts such extensive additions were unnecessary and would overload the indictment. But he gave leave for one further pair of counts to be added against each defendant, relating to the presence of the Iranians in the UK, so that their presence as well as their entry were reflected in the indictment. (The proposal to add counts to reflect “transit” would have been inappropriate; “transit” covers those who do not enter the UK in the immigration sense but are in transit through it, and to whom special rules apply even though they remain airside, not passing through immigration control. It had no application to the facts asserted by the Crown in this case).

In order to understand the significance of what then occurred, it is necessary to set out the terms of the relevant statutory provisions. S25(1) and (2) provide as follows:

“(1)

A person commits an offence if he-

(a)

does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union,”

(b)

knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and

(c)

knows or has reasonable cause for believing that the individual is not a citizen of the European Union

(2)

In subsection (1) ‘immigration law’ means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to-

(a)

enter the State,

(b)

transit across the State, or

(c)

be in the State”

The two pairs of counts thus covered facilitating the commission of a breach of immigration law controlling the entitlement to enter the UK of the two non-nationals, and facilitating the commission of a breach of immigration law controlling their entitlement to be in the UK. It was never in dispute but that they had no entitlement to enter the UK and it was agreed that their presence here was unlawful. The fact that they claimed asylum later has no bearing on this case.

During the course of the pre-trial argument about the form of the indictment, the Recorder took the view that the facts which underlay the “entry” had to relate to what happened when the two Iranians presented the false passports at Birkenhead to what turned out to be police officers. That he concluded was the point of entry into the UK. The Recorder thought that the concept of “entry” in UK immigration law required that conclusion. It followed that the facts underlying the second pair of counts, facilitating “being in” the UK, covered events in Northern Ireland and on the ferry to Birkenhead up to disembarkation and arrival at the police check point.

This was contrary to the way in which the Crown had intended to present its case and contrary to the submissions of all parties as to where entry into the UK had taken place. All were agreed that the two had entered the UK when they crossed into Northern Ireland or at the latest when they detrained at Belfast.

The Crown then presented its case on the basis dictated by the Recorder’s ruling. The Recorder adhered to his view through the submissions of no case to answer and in due course directed the jury in law on that basis. The Crown nonetheless was able to place the totality of the relevant facts before the jury either under the “entry” counts or under the “being in the UK” counts and the Recorder directed the jury along those lines in relation to the facts.

The first ground of appeal is that the Recorder was in error in his understanding and direction in relation to entry. Entry occurred upon arrival in the UK across the Republic of Ireland /Northern Ireland border or when the two got off the train in Belfast. All parties before us remained agreed upon that, and that entry had therefore not occurred at Birkenhead. We agree. It occurred when the two crossed the border from the Republic into the UK. We shall deal later with the impact of this error of law upon the safety of the conviction upon the first pair of counts. But first it is necessary to say a little about the reasoning which led to this error.

“Entry” is an ordinary word which in certain immigration contexts has a special meaning provided by statute. If a person arrives in the UK by land, he enters it when the Republic of Ireland – UK border is crossed in Northern Ireland. There are special rules for arrivals by the Channel Tunnel rail link. S11 of the Immigration Act gives entry a specific meaning for those who arrive by ship or aircraft. They are deemed not to enter until they disembark. If they enter at a port with a designated immigration area, they are deemed not to enter until they have left that area.

S11 (1) and (2) provides:

“A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as she is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act….

In this Act ‘disembark’ means disembark from a ship or aircraft, and ‘embark’ means embark in a ship or aircraft; and, except in subsection (1) above-

(a)

references to disembarking in the United Kingdom do not apply to disembarking after a local journey from a place in the United Kingdom or elsewhere in the common travel area;”

S11 has no application to entry by land. Those who disembark from a boat otherwise than at a port enter on disembarkation, as do those who disembark at a port which has no designated immigration area. S11 does not apply to those who have already entered the UK overland or on an earlier disembarkation.

The distinction between “arrival” and “entry”, which troubled the Recorder, is irrelevant on the facts of this case because the two Iranians did not arrive in the UK by ship or aircraft. They had already entered the UK when they arrived at Birkenhead and they were already illegal entrants. They entered where they crossed the land border into Northern Ireland. That in ordinary language was the point of entry and no statutory provision deemed otherwise.

However, even if they had not already entered the UK, the arrival/entry distinction is only applicable where at the point of disembarkation there is a designated area into which an individual goes and where he remains until dealt with by an Immigration Officer. If there is no designated area, entry occurs at the point of disembarkation. If there is such an area but unexpectedly no Immigration Officer is present, entry occurs on departure from that area. The purpose of this statutory arrangement is to avoid every traveller being an illegal entrant on disembarkation or even on crossing the territorial limits by sea or air. The distinction between arrival and entry does not mean that everyone who arrives in the UK, whether at a port in an outwardly conventional manner or clandestinely through a port or on to a beach, postpones entry until he has been dealt with by an Immigration Officer. This deeming provision, in relation to what does not constitute entry when it otherwise would, is specific and narrow. In addition, the deeming provision also covers those who are allowed or taken inland beyond those limits usually through temporary admission or detention but are not granted leave to enter. Without the contrary deeming provision, that would constitute entry.

The special provisions for the Common Travel Area, (“CTA”), which includes the Republic, are qualified by the Immigration (Control of Entry through Republic of Ireland) Order 1972 No.1610, as variously amended. For these purposes, the two Iranians, who needed but had no valid visa for entry into the UK, become illegal entrants on arrival in the UK, crossing the border. They do not benefit from the arrangements which exist for control-free travel within the CTA.

There is at first blush a curious provision in S11(2) in relation to the CTA and local journeys. But although it has the effect of making the Act generally neutral in relation to such journeys, it was necessary to exclude them from s11(1) because someone arriving by ship or air from within the CTA could otherwise never disembark in law and thus could never enter or be an illegal entrant. Such a person could also move from UK port to UK port until he found one where there was no actual control and then enter after a local journey without legal control.

The Recorder relied on the decision of the House of Lords in R v Naillie [1993] AC 674 for the application here of the distinction between arrival and entry, and in particular on passages in the speech of Lord Slynn at p680B-E where he said:

“The pattern of the Act is thus that a person arriving in the United Kingdom by air must present himself to an immigration officer, and if so required, be examined, furnish information and produce a valid passport or other document. He can only enter lawfully if he is given leave. He is an illegal entrant if he comes in without such leave or in breach of the immigration laws, e.g. by deceiving the immigration officer knowingly or otherwise.

A person arriving by air at Heathrow does not enter the United Kingdom when he disembarks. Nor, contrary to the appellant’s argument, has he entered when he proceeds towards immigration control having passed the transit corridor, thereby evincing an intention to go through immigration rather than to seek to go to a foreign destination. It follows that merely to disembark without a passport does not mean that a person has ipso facto entered illegally.

It is said however that “illegal entrant” includes a person seeking to enter in breach of the immigration laws. However, a person in my opinion is not seeking to enter within the meaning of the Act when he disembarks. He seeks to enter when he presents himself to the immigration officer or when he tries to pass out of the area of immigration control without presenting himself to the immigration officer. Thus if he presents himself to the immigration officer and produces a forged passport or lies in a material way he is seeking to enter in breach of the immigration laws. If he is discovered to have forged documents he is an “illegal entrant” within the definition set out in the Act. If he succeeds and is allowed in on the basis of forged documents he is also an “illegal entrant.”

Lord Slynn was only concerned in that case with the routine position at an international port where there is a designated area and before the would-be entrants approach the Immigration Officers. Naillie needs to be read in the context of the actual issue which arose in that case. As was held by two later decisions of this Court, R v Adams (24 August 1995), [1996] Crim.LR 593 and R v Eyck [2000]1 WLR 1389 which adopts Adams, the position is different where the would-be entrant intends to and receives help to evade immigration controls altogether before arriving in the UK.

Accordingly, Naillie does not deal with illegal entry effected away from a port such as over a beach, or through a port with a designated immigration area by those e.g. concealed in a lorry, who never approach an immigration officer. It does not apply to the position where the port of arrival and entry has no designated area, which may receive wholly domestic traffic or wholly CTA traffic, or which lack such facilities for certain berths or terminals used by such traffic. Third, it does not define the concept of “entry” and does not hold that a distinction between “arrival” and “entry” exists in every case, nor does it establish that arrival only becomes entry once papers have been presented to an Immigration Officer.

Although it does not arise directly in this appeal, there is a question as to whether the actions of the Appellants in Northern Ireland could have been regarded as facilitating entry even though they occurred after entry had in fact been made. We examine this because of the problems which can be created where a continuous course of conduct, by an individual or by several individuals each playing different parts in sequence, is split up into what may seem artificial sections, and which may also lead to an unduly complex and cluttered indictment.

There is a passage in the judgment of this Court, in R v Adams, given by Roch LJ which states in relation to facilitating entry that:

“Clearly the physical acts of making or carrying out the arrangements for securing or facilitating the entry into the United Kingdom have to be committed prior to the entry occurring or contemporaneous with that entry. The real question is whether actual entry is necessary before a person can be guilty of any offence under section 25(1) or whether it is sufficient that the defendant is shown to have made or carried out arrangements for securing or facilitating the entry into the United Kingdom of somebody whom he knows or has reasonable cause to believe would be an illegal entrant were entry to be made. Is an entry into the United Kingdom a necessary ingredient of the offence or is it sufficient that the person assisted by the defendant falls within the definition of an ‘illegal entrant?’ In our judgment it is sufficient that the person assisted by the defendant is shown by the evidence to some within the definition of illegal entrant.”

The whole passage from which this was taken was adopted by this Court presided over by Mantell LJ in R v Eyck. The Recorder drew in particular on the first sentence of this passage. That might appear to preclude acts which take place after entry from being part of the facilitating of it. They would then necessarily fall within the scope of the provision relation to facilitating someone being in the UK. The narrower the scope of the facts capable of facilitating entry, the more obvious and necessary it is that facilitating being in the UK has to cover mere presence after an illegal entry

However, in R v Singh and Meeuwsen [1972] 1 WLR 1600, [1973] 57 Cr App R 180, this Court presided over by Lawton LJ held that acts both before and after the illegal entry could be relied on as facilitating that entry. That case concerned two men who assisted some illegal entrants get away from the trailer, in which they were concealed, after it had left the port area. They had not been involved in bringing the trailer into the UK. The Court specifically rejected the notion that they could not be guilty of an offence of facilitating entry on the grounds that the individuals had already entered by the time that they were released. It recognised that there could be an overlap between the offence of facilitating entry in those circumstances and what was then the offence of harbouring. The Court’s reasoning was that those who wish to enter illegally have no wish to be discovered as soon as they disembark, and effective plans for their illegal entry would involve plans for their getting away from the port, undiscovered, as soon as possible.

Singh was cited in the Skeleton Argument in Eyck but is not referred to in the judgment.

We consider, from some of the Recorder’s comments and the submissions, that the significance of Singh has been overlooked and that the passage from Adams and Eyck which we have cited may have led to an unduly narrow view of when acts can facilitate entry. Those two cases were not addressing that issue directly. Adams was dealing with the argument that someone who, because of bad weather had moored in a marina in the UK with a number of undocumented Chinese on board, had not facilitated their entry because they had not yet entered. That would not occur until they actually disembarked from the boat, which they were only going to do when they had reached their intended destination, albeit that that was in the UK. This argument was got up on the basis of a misunderstanding of what Lord
Slynn said in Naillie. As the Court pointed out in Adams, Lord Slynn was not dealing with the situation where the entrants were seeking to evade immigration controls altogether. He was only dealing with the position in the designated area in an international port where there were immigration officers to control entry. Adams also rejected the argument that the offence of facilitating entry could not be committed unless an actual entry had taken place.

Eyck involved similar arguments. Eyck drove a van containing Afghans on to the Dover bound ferry at Calais. They were discovered in the van en voyage in circumstances pointing to an intention on their part to enter clandestinely. After citing extensively from Adams, Mantell LJ held that in Eyck the issues were whether it had been proved that the passengers intended to enter or to seek to enter illegally and whether Eyck was knowingly concerned in carrying out arrangements for facilitating such an entry: the jury safely concluded that he had been.

Singh remains good authority for the proposition that it is possible to facilitate entry by acts which occur close to but after actual entry. Its own facts are a good example of acts which facilitated the commission of a breach of immigration control over entry. They were necessary for the entry to be effective and were closely related in place and time to the actual entry. If “contemporaneous”, the word used by Roch LJ in Adams, is given a modest leeway in time, the act of releasing the men from the trailer was contemporaneous with entry. It would have been possible to treat that as relating to the then offence of harbouring or now to “being in” the UK, but that would have led to an unduly artificial distinction on the facts. As Lawton LJ pointed out there was a degree of overlap between facilitating “entry” and what is now facilitating “being”.

It would be highly undesirable, in our judgment, if every time the facts involved actions before and immediately after entry, although part and parcel of it, they always had to be the subject matter of a separate count of facilitating “being”, with nice distinctions being drawn between the facts and knowledge relevant to each count. This would be especially so for one continuous course of conduct by the same people.

The instant facts may well have involved too prolonged a course of conduct after entry to have been charged as facilitating “entry”; it was certainly reasonable to charge the steps taken in Northern Ireland from the ferry in Belfast on to Birkenhead as facilitating “being” in the UK. The events in Birkenhead themselves undoubtedly facilitated “being” in the UK. Either way, sentence should relate to the whole course of conduct.

The next question is whether the convictions on the counts relating to entry are safe. Mr Pickavance for the Crown had some difficulty in submitting that they were safe and we accept the submissions from Mr Hodson for Javaherifard and from Ms Arshad for Miller that they were not.

The Recorder’s ruling specifically held entry to be at Birkenhead and to that end the defence in relation to those counts focussed on what had been done there. The existence of two pairs of counts meant that all the assistance to get the two Iranians to Birkenhead fell to be considered under the two “being” or “presence” counts. This first had the consequence that the Appellants were charged with facilitating the commission of a breach of immigration law controlling entry by reference to a very specific set of facts, from the scope of which were excluded the prior acts of assistance in Northern Ireland and Dublin simply because they formed the subject matter of the other two counts. There was however no breach of immigration control over entry facilitated at Birkenhead, in that very narrow way in which the Crown ended up formulating its case relating to entry, simply because there was no entry in Birkenhead. That was the only place where the Crown alleged that the entry which had been facilitated had taken place. The conviction is unlikely to be safe when the very act relied on as the basis for the alleged breach of immigration law controlling entry does not, as the Crown put its case, constitute such a breach. It does not matter that facilitating entry there may have been what the Appellants thought they were doing.

We also note that the Appellants’ forensic focus on those entry counts would not have been on the events in Dublin and on the train to Belfast, which is where it should have been. It would have been on what happened at Birkenhead. The evidence and argument would have been differently focussed had they been facing an alleged point of entry in Northern Ireland. Certainly the jury were never directed as to the true significance of what happened there in relation to these two counts, nor as to the relevant mental element at that stage. Conversely, as the evidence on the “presence” counts covered considerably more than just the actions in Dublin and on the train to Belfast, the fact that the jury convicted on those other counts cannot be taken to mean that they did accept, or if properly directed on the point of entry would have accepted, all that the Crown had to say about the involvement of the Appellants at the specific juncture of the crossing into Northern Ireland.

The Crown tentatively suggested that the convictions were safe on the basis that its case as a whole had been accepted by the jury. However taking the combined impact of the erroneous directions by the Recorder both on the presentation of the Crown’s case, and to the jury, and the inevitable effect on the way the appellant’s case was presented to the jury, this suggestion is rejected. The Crown and the summing-up did not deal with all the activities as aspects of facilitating entry. Had it done so that argument would have been stronger. There may or may not have been a case to answer on the entry counts at half time, but as the impact of the erroneous direction clearly affected the way in which that factual issue was approached by the Appellants and jury, we see no need to consider that specific argument on these counts.

We turn to the submissions on the second pair of counts. The Appellants make two points. First, there was no offence known to law in the second pair of counts, because there was no further breach of immigration law facilitated once the two Iranians had entered the country illegally, even though their presence continued to be unlawful. Second, the judge ought to have accepted a submission that there was no case to answer by either Appellant on the evidence. We start with the existence of an offence.

Applying the words of s25 of the 1971 Act to the allegations underlying the second pair of counts leads to this. For an offence to exist it must be shown that each Appellant (a) did an act which facilitates the commission of a breach of UK immigration law, controlling entitlement to “be in” the UK, by the two Iranian nationals, (b) knowing or having reasonable cause for believing that that act facilitates the commission of a breach of that immigration law by the two Iranians and (c) knowing that they were not EU citizens. That latter point was never in dispute. We put “facilitates” in the present tense as used in the statute even though the facilitating act itself must have been done for the substantive s25 offence to have been committed. This is because it is not necessary to prove that the breach of immigration law has actually been committed. It is sufficient to prove that a future breach has been facilitated by what the defendant has done; see R v Eyck.

The Appellants submitted that, although at all times the presence of the two Iranians was unlawful because they were unlawful entrants in Northern Ireland, there was no further breach of immigration law committed by them once they had entered unlawfully. That was a single act even though it led to the continuing and unlawful state of being in the country. Therefore there was no further commission of a breach of immigration law which the Appellants could have facilitated. All the acts done in Northern Ireland up to the point of disembarkation at Birkenhead were irrelevant because they did not facilitate entry and there was no further breach of immigration law controlling an illegal entrant “being” in the UK. Certainly there was no offence apart from illegal entry committed by the two Iranians. The events at Birkenhead when the police were shown false papers and arrested the Iranians, related to the “entry” counts and not the “being” counts.

The Appellants referred to various statutory provisions. S3 of the 1971 Act, the general provision for immigration regulation, did not forbid an illegal entrant to “be “in the country. S24, which contains the general offences committed by immigrants to breach immigration control, does not contain any such offence. S24A(1) and (a) in particular, which creates an offence by non British citizens who seek, by deception, leave to enter or remain could not apply: no leave to enter had been sought, and “remain” meant “remain” after the grant of some leave had expired, rather than merely “being” in the UK. In that sense the two Iranians did not “remain” here. S24A(1)(b), which deals with those who by deception seek to secure the avoidance of enforcement action, removal of one sort or another, was not referred to.

The Appellants suggested that, far from their arguments creating an undesirable lacuna in the Immigration Acts, there would be major problems were the Crown’s arguments upheld. It would be an offence for someone, who was not trying to deceive the authorities in any way, to provide food or shelter for someone whom they thought was an illegal entrant; it would be an offence to give legal advice to them about their position; it could even be an offence for NASS support and other statutory benefits to be given to them.

Ms Arshad referred to s25 A in support of this line of argument. Individuals arriving in the UK without the necessary visa or passport were either illegal entrants or asylum seekers. If the latter, even though it would not be an offence to facilitate their arrival if not done for gain, it would be an offence to facilitate their continued presence. She did not pursue the brief suggestion in her supplementary Skeleton Argument that the Recorder should have ascertained their status in that regard. No aspect of the defence case related to such a status.

The Crown submitted that the Appellants’ actions in the UK assisted the two Iranians to “be” in the UK and that as their presence was unlawful, they were here in breach of immigration control. Staying here as illegal entrants was a sufficient commission of a breach of immigration control. It was the natural consequence of the requirement for leave to enter, that staying without that leave was breach of immigration control. Mr Pickavance supported that by reference to s11 of the Nationality, Immigration and Asylum Act 2002 which, for the purposes of the citizenship provisions of the British Nationality Act 1981, defined a reference to “being in” the United Kingdom “in breach of the immigration laws”, as meaning at (2)(a) someone who in breach of the immigration laws “is in the United Kingdom” and (c) “does not have leave to enter or remain in the United Kingdom (whether or not he previously had leave)”. There was therefore a statutory concept of “being” in the country in breach of immigration law. It did not require a further breach of immigration control such as making a false application for leave to remain.

The Recorder accepted the submissions of the Crown, although the 2002 Act was not drawn to his attention. The two Iranians were in the UK when they were in Northern Ireland even though on his view they had not technically entered; they had certainly arrived. He rejected the argument put forward by Mr Hodson at the submission of no case to answer that being “in” the UK could only occur after entry which could only occur after an individual had presented himself to an Immigration Officer. Although he dealt with this argument under the misapprehension that entry had not taken pace in Northern Ireland, he was alive to the problem of holding that someone who had knowingly facilitated the unlawful presence in the United Kingdom of the two Iranians did not constitute an offence.

In our judgment the Appellants were properly indicted for an offence known to law. For this purpose it is not essential that the breach of immigration law itself should constitute an offence. The arguments of the Appellants in so far as they rely on the absence of a separate offence of “being in the country having entered illegally” are misconceived. They are right though that there is no such specific offence. S24(1)(a), which creates the offence of knowingly entering the UK without the requisite leave to do so, does not create a continuing offence; see the contrast with s24(1A) relating to knowingly overstaying, and the time limits for prosecution and for their extension in relation to the entry offence in s28. The amendment in s24 (1A) was to deal with the decision in R v Singh [1973] 1 WLR 1446 and the opportunity was not taken to amend s24(1)(a).

We draw attention however to S24A(1)(b) which deals with those who by deception seek to avoid enforcement action. Although the Crown case was not put this way and it is not the basis for our decision, it would have been open to the Crown to contend that the presentation of the forged passports at the police checkpoint in Birkenhead, whether or not the Iranians thought that they were facing immigration control, was a deceitful attempt to avoid immigration enforcement action by representing to authorities who could detain them and take steps leading to their removal, that they were in the UK lawfully as Swiss and Austrian citizens. This in reality is the substance of the factual allegation underlying the facilitating “entry” counts upon which, thus expressed, the jury were satisfied as to guilt.

Second, we reject the assumption that the concept of immigration law controlling entitlement to “be in the State” requires any special interpretation so that it only applies to those who remain in the State after the expiry of limited leave or after a breach of its terms. It is inevitable that immigration control will use words on occasions with a technical meaning, but unless that technical meaning is clearly intended to be used in a particular context, Courts should avoid an unduly technical approach. S25 (2) is clearly intended to embrace all aspects of that which immigration law can control: entry, transit and the sweeping up phrase of “being in the State”. “Entry” has in certain contexts a technical meaning as we have discussed. So too does “transit”; as already discussed, it is aimed primarily at those who remain airside and so do not “enter” the country at ports, yet who require transit visas. “Being in the State” covers all the other aspects of presence, including arrival pre-entry, overstaying or breach of leave, or presence as an illegal entrant who has no leave. Indeed, it contrasts with the term “remain” which, used in a technical sense, is the meaning which in effect the Appellants contend “be” should have. Had Parliament intended to confine “being in the State” to those who enter with limited leave and either overstay or breach its terms, then the word “remain” at least would have been used to contrast with “entry”, and its technical scope would then have been for debate.

Third, it would be absurd if unlawful presence did not constitute a breach of immigration law. S1(2) of the 1971 Act sets out the general principles for those who have no right of abode. They “may live in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure form the United Kingdom as is imposed by this Act…”. That carries with it the necessary implication that they may only live in the UK with permission and that without that they are in breach of immigration control in living here. S3 which contains the provisions for general immigration control, prohibits non-British citizens to enter without leave. True it is that it does not say that such a person, having entered, shall not stay in the country. But it is absurd to argue that that means in some way that there is no further breach of immigration law after entry. The prohibition on stay is inherent in the prohibition on entry; it did not need spelling out. It may not be an offence merely to stay after an illegal entry, but that is a far cry from saying that it is not a breach of immigration law to do so. The point can readily be tested by the fact that such a person is liable to removal without more ado. In our judgment the continued stay after the single offence of illegal entry is a continuing breach of immigration law.

Although the provisions of s11 of the 2002 Act relate to the British Nationality Act 1981, the concept of a breach of immigration law is the same as the one with which we are dealing here. There is no special reason for it to have a particular meaning exclusively relevant to that Act. The context is the duration of lawful residence for registration as a British citizen. It confirms our view that the concept of “being in the State” without leave is itself a breach of immigration law.

If the Appellants were correct in their submissions that no breach of immigration control would arise from the continuing unlawful presence of the illegal entrants in the UK, a very significant gap would be created. It would not be an offence to assist an illegal entrant with money, travel assistance or guidance, or accommodation with the purpose of enabling him to stay in the UK as an illegal entrant. So an individual who helped an illegal entrant into the UK would be guilty of an offence, while another who then assisted in the onward journey and accommodation arrangements after entry, so as to make entry as effective and useful as the illegal entrant wanted it to be, would not be guilty of an offence at all. He would only be guilty of an offence to the extent that his actions could be seen as part of “entry”, or if he sought to assist the stay deceitfully, such as by assisting the entrant in seeking leave to remain on a false basis or by deceiving an official who could take steps to remove him. The possibility of prosecution on that basis seems a haphazard response to the problem of assisting illegal entrants to stay unlawfully.

The argument that the Crown’s contentions lead to equally undesirable consequences, and so cannot have been intended, are misplaced. The s25 offence is only committed if, with the requisite guilty knowledge, the acts facilitate the commission of a breach of immigration law controlling, in this instance, “being in the State”: that is, being unlawfully in the UK. If the provision of legal advice is about how lawfully and honestly to regularise the stay of someone known to be an illegal entrant, no offence arises: those acts do not facilitate the commission of a breach of immigration law through continued illegal presence; they do the opposite. If someone provides food, money or accommodation to an illegal entrant, knowing or having reasonable cause for believing that such acts facilitate him being in the country as an illegal entrant, he would be guilty of an offence and we see no reason why that should not be so. If food, money or accommodation is supplied to someone known to the provider to be an illegal immigrant, but is not supplied with the knowledge that it will assist his presence as an illegal entrant but instead is supplied knowing that it will assist him simply as a human being eg to avoid degradation or destitution, there would be no offence. The provision of NASS support and other statutory benefits is made under the protection of statutory provision if no other defence is available, but it is difficult to see how that would assist someone to remain as an illegal entrant, as opposed to remain while seeking to regularise his stay.

The arguments in relation to s25A and the particular provision for asylum seekers do not advance matters. Asylum seekers may or may not be illegal entrants; they frequently are. If an asylum seeker is an illegal entrant, then assistance to him to make an asylum claim would not be an offence under s25 unless the person providing the assistance knew that the claim was untrue or had no reasonable cause to believe that it was true. The assistance would not otherwise facilitate the commission of the breach of immigration control through continued stay as an illegal entrant. S25A deals with someone who, for gain, helps an asylum seeker’s “arrival” in the UK, concerns at a port where he claims asylum in the designated area or on approaching the Immigration Officer. “Arrival” is used in the technical Naillie sense. S25A does not deal with “entry”, and those who assist the illegal entry of someone who later claims asylum are guilty of an offence under s25, whether or not they do it for money or out of genuine concern for someone who has truly been persecuted. S25A does not help the Appellants’ arguments. Accordingly, the first challenge to the second pair of counts is rejected.

We turn to the contention that the judge should have acceded to the submissions of no case to answer on these two counts. The submissions to him were that for an offence to exist, it was not sufficient to show that the presence of the two Iranians in the UK had been facilitated by the Appellants: the only acts which were relevant were those which facilitated entry; facilitating entry could not be shown even in relation to the crossing of the Republic/Northern Ireland border and there were no subsequent acts which breached any specific identifiable immigration law, such as an endeavour to deceive an immigration official. That is also how the arguments essentially were placed before us. They were the next stage in the argument had the Appellants succeeded in the prior legal argument which we have addressed above. It was necessary for them to challenge the ruling that there was no case to answer rather than the jury’s verdict, because they contended that at half time there was no evidence to go to the jury as to their involvement in the journey from Dublin to Belfast. That it was said came in the Appellants’ own evidence.

We have however rejected the legal basis for the argument that there was no case to answer. We have accepted that the commission of the breach of immigration control in the second pair of counts arose from the stay or presence in the UK of the two Iranians as illegal entrants, and was facilitated in these counts by the actions of the Appellants relating to travel in Northern Ireland and on to Birkenhead. The actions in the Republic of Ireland, while not necessary for the offence, were admissible to give a full picture of the assistance given. Indeed, had it not been the subject of the “entry” counts, what happened at Birkenhead would have been relevant to the second pair of counts.

On that basis, there was ample material at half time. We can quote from the Recorder’s ruling. In addition to assisting the two in Belfast to the ferry from the train:

“Miss Miller literally paid for the ticket, shared a cabin on the ferry with the two Iranian men and walked towards the officers with them. The defendant, Mr Javaherifard, whilst at all times in Newcastle, was clearly part of a joint enterprise to do this. He was in regular telephone contact with Miss Miller once she had flown to Belfast and both during her crossing and upon her arrival in Birkenhead. The times of the call are significant. Clearly he was managing affairs from Newcastle because he himself was a person whose application for asylum had been refused and was given only limited permission to remain due to his marriage to Miss Miller. He could not leave the country sensibly because he may not have been allowed back in again. He therefore managed affairs from Newcastle while his wife literally brought the men in.”

The evidence was even clearer when the judge came to sum up.

The convictions of both Appellants on Counts 1 and 2 are quashed. The appeals of both in relation to Counts 3 and 4 are dismissed.

There was no renewal of the application for leave to appeal against sentence by Miller. Javaherifard abandoned his renewed application by a letter to the Criminal Appeal Office in August 2005. He did so without seeking legal advice on the merits of that course. He wrote to the CAO on 10^th October 2005 asking in effect that the Court grant leave to withdraw that abandonment on the grounds that he had withdrawn the application because he feared an increase in his sentence, English was not his first language, he had no legal aid for the services of a solicitor in the appeal, and he did not know that the recommendation for deportation was an appealable part of his sentence. Those grounds were repeated before us.

The relevant test is set out in R v Medway [1976] 1 QB 779: the court may permit an abandonment to be withdrawn where it was not a deliberate and informed decision made in circumstances which rendered it an nullity. In Medway, the applicant made his decision to abandon on erroneous legal advice, but it was a deliberate decision to do so. The abandonment could not be withdrawn. In the present case Javaherifard made a deliberate decision to abandon his proposed appeal against sentence. At the same time the appeal against conviction was pursued. Solicitors acted for him, and it is not suggested that he was misled by their advice. He had a reasonable understanding of English. We can see no reason to allow the abandonment of the appeal against sentence to be withdrawn. We have, in any event, reflected on the sentence and the recommendation for deportation. The Recorder carefully analysed the essential features of the case, including the applicant's previous good character. He also reflected on the guideline decision in R v Van Bin Le and Stark [1999] 1 Cr App R (S) 422, in which Lord Bingham CJ explained some of the relevant aggravating and mitigating features in this class of case. This case involved two illegal entrants, one of whom was a stranger to the defendants and the use of quite sophisticated false passports. There is no realistic argument that the sentence, together with the recommendation for deportation were either manifestly excessive or inappropriate. In truth the decision to abandon the application for leave to appeal against sentence was right.

Shortly before judgment was to be handed down Mr Hobson drew our attention to a discrepancy between the sentences as recorded and the sentences intended by the Recorder. He intended to impose on each Defendant concurrent sentences of 2 years in respect of the “entry” and “presence” counts covering the brother i.e. counts 1 and 3 and 3 years in respect of the “entry” and “presence” counts covering his acquaintance, i.e. counts 2 and 4. These were recorded as 2 years in respect of entry and 3 years in respect of presence. We accept that this is not what the Recorder intended and the record should be corrected to show what he did intend. This does not affect the total sentence, or the merits of the appeal but the last sentence of paragraph 1 should be read subject to this qualification.

This application is dismissed.