Ovieriakhi, R. v

THE LORD CHIEF JUSTICE: I shall ask Mr Justice Christopher Clarke to give the judgment of the court.

MR JUSTICE CHRISTOPHER CLARKE:

1. On 20 January 2009, at the Crown Court at Canterbury, the applicant pleaded guilty to possessing a false identity document with the intention of using it for establishing registrable facts about herself, contrary to section 25(1)(a) of the Identity Cards Act 2006. She was sentenced to twelve months' imprisonment, with a direction that 18 days spent in custody on remand should count towards her sentence. As a result she was automatically liable for deportation under the provisions of section 32 of the United Kingdom Borders Act 2007. Her application for leave to appeal against that sentence has been referred to the full court by the Registrar. We grant leave.

2. The facts of the case are these. On 2 January 2009 an enforcement team from the Immigration Authority visited a nursing home in Westgate-on-Sea, following information that a Nigerian woman was working there illegally. The appellant was spoken to. She gave her name as Valerie Ovieriakhi and said that she had arrived in the United Kingdom in April 2008 as a visitor for six months. It was accepted by the Crown that she had entered the United Kingdom using her own, valid, passport. She was arrested as an overstayer.

3. The appellant's home was searched. Officers found a false Nigerian passport in the name Valerie Michaels, which contained the appellant's photograph. The appellant accepted that that passport was hers.

4. When interviewed the appellant admitted possession of the false passport. She stated that when she entered the UK she had not intended to work, but had changed her mind. She had bought the passport in June or July 2008 for £300 so that she could obtain employment. She provided the photograph for it and knew that it was not a genuine document. She would not say who provided it.

5. The appellant is aged 40. She has no previous convictions. She pleaded guilty at the preliminary hearing. She could not have done so any earlier. She is a Nigerian who has been married for two years. She has two young children. In 2002 her husband left Nigeria to obtain work in Germany. The appellant has been refused on three occasions leave to reside in Germany. She has, we were told, received no financial support from her husband. When in Nigeria she was employed as a Vice-President of a secondary school, where she taught chemistry. The pay for that work was poor.

6. In April 2008 she came to this country to visit her sister and to recover from a car accident. He apparently hoped that her husband would be able to come to the UK from Germany to visit her, but he did not. She had left her children in the care of her parents in Nigeria. Whilst she was in the UK her father died and her family suffered financially. She obtained work in this country in a care home, for which she earned more than she did working in the school in Nigeria. However, the judge was not satisfied that she could not support her children if she worked in Nigeria.

7. The circumstances of this case present a not unfamiliar picture. The appellant, a woman of good character, lawfully enters the UK. She then remains longer than the time permitted. Next, she obtains a false passport in a name similar to her own in order to obtain a job. The work that she obtains is worthwhile and necessary. She embarks on this course of conduct because of her family difficulties and because, although she could obtain a job in Nigeria, work in the United Kingdom pays more.

8. The learned judge indicated that he found himself in some difficulty because of divergent authorities in this court. In R v Kolawole [2005] 2 Cr App R(S) 14, the appellant had in his possession two forged passports, one a Nigerian and the other a stolen British one. Both contained his photograph. The court upheld two consecutive sentences of eight months' imprisonment, making sixteen months in all, on a plea to having a false instrument with intent that it should be used, contrary to section 5(1) of the Forgery and Counterfeiting Act 1981, which has a maximum penalty of ten years. The court held that where a passport was being used or held with the intention of use, the appropriate sentence, even on a guilty plea by a person of good character, would be within the range of twelve to eighteen months.

9. In R v Mutede [2005] EWCA Crim 3208, [2006] 2 Cr App R(S) 2, the appellant had pleaded guilty to possession of a false instrument with intent and to obtaining a pecuniary advantage by deception. The appellant was a Zimbabwean woman of good character who had permission to enter the United Kingdom as a visitor. She had applied for a student visa and had a legitimate passport. In order to obtain employment as a care worker, she had used forged letters purporting to come from the Immigration and Nationality Directorate which purportedly gave her permission to stay and seek employment. The court in that case distinguished between using a false passport to obtain entry and using false immigration letters to obtain work, and substituted sentences of six months' imprisonment for the fourteen months that had been imposed.

10. In R v Adebayo [2007] EWCA Crim 878, the appellant went to an employment agency, where he produced a National Insurance card and a Nigerian passport, both of which were fakes. He had also used these documents to try to obtain a bank account. The court (consisting of two members) declined to adopt the approach in Mutede . The court pointed out that in Mutede no false passport was involved and declined to distinguish between using a false passport to enter the country and a false passport to remain here. It regarded the case as indistinguishable from Kolawole and regarded the appropriate bracket for sentencing as falling within the twelve to eighteen months' range. The court substituted for the sentence of two years' imprisonment that had been imposed, a sentence of fifteen months' imprisonment.

11. In the present case the learned judge referred to the passage at 22-45E in the 2009 edition of Archbold, which describes Adebayo as holding that Kolawole applied with full force where it was a passport that is used to obtain work.

12. In R v Carneiro [2007] EWCA Crim 2170, the appellant was a Brazilian who came to the United Kingdom lawfully as a visitor and was granted permission to remain on condition that she did not take up employment. In fact, she overstayed and obtained work as a cleaner. She opened a bank account by producing a Portuguese identity card in somebody else's name, and two other documents. The card was a fake. The court reviewed a number of authorities. It pointed out that certain distinctions had been drawn in the cases: a false use of a passport to obtain entry was particularly serious; the false use of another document to obtain employment was less serious; further, a distinction had to be drawn between offences under section 25(1) and 25(5) of the Act because of the markedly different maximum penalties. The court referred to Mutede . It pointed out that the reason why custodial sentences are usually imposed in circumstances such as the present case is because the offender had obtained entry on a limited basis which prohibited the obtaining of employment. The false documents are used in order to breach that condition and obtain employment. Such conduct, all too easy to do, is conduct which, if copied, is inimical to proper immigration control. On a guilty plea the court considered that a sentence of six months was appropriate. Despite the fact that the appellant in that case had done work which was necessary and which others found uncongenial, and despite a sad personal background with which the court had sympathy, the court found no justification for suspending the sentence.

13. In Attorney General's Reference Nos 1 and 6 of 2008 [2008] EWCA Crim 677, the court made it clear that the possession of passports by those intent on terrorism would merit deterrent sentences, as would the possession of false passports that might have the effect of assisting terrorism. Further, for offences related to activities designed to undermine immigration control, Kolawole continued to provide guidance. In the second case before it the court refused to categorise as lenient, let alone unduly lenient, a community supervision order in the case of a Zimbabwean who was neither entitled to stay, nor likely to be returned, and thus caught in a form of limbo, who had used false identity documents to obtain work since he could not return home.

14. In R v Olasunkanmi [2009] EWCA Crim 15, the appellant had been admitted in 2006 on a valid Nigerian passport and had been given leave to remain as a student. He was not even an overstayer. He had, however, in his possession a false Nigerian passport for the purpose of obtaining work. This court substituted for the twelve month sentence imposed a sentence of six months.

15. The divergence in these authorities arises primarily from the difference in their facts. At one end of the scale is the use or possession for use of false passports for the purpose of evading, or enabling others to evade, the controls on entry into the United Kingdom. Such evasion may at worst be for terrorist or other malign purposes, or at least for the purpose of securing the entry of someone into the United Kingdom which would otherwise be forbidden. The documents may be possessed by those whose business it is to help others to circumvent the rules on entry. At the other end of the scale is the use by someone who is lawfully in the United Kingdom of a document other than a passport for the purpose of obtaining employment or a bank account. Attention must also be paid to the difference in maximum sentence between a case involving intent and one of mere possession: see R v Oliveira [2006] 2 Cr App R(S) 115.

16. Wherever the case is on the spectrum, a custodial sentence is likely, save in exceptional circumstances, for the reasons stated in Carneiro . In cases in which a false passport is to be used for the purpose of securing entry into the United Kingdom, the guidance contained in Kolawole applies. Where, however, a false passport is used to obtain work or a bank account, its use does not enable the offender to obtain entry to the United Kingdom and for that reason it may properly be treated less severely than the use of a passport which does, or may, have that effect. What the use of a passport to obtain work does, however, do is to facilitate the offender remaining in the United Kingdom in breach of immigration controls. For that reason a custodial sentence is usually required. But it can justifiably be less, particularly if the offender is of good character and has done no more than use or try to use it to seek employment in order to maintain himself/herself or his/her family.

17. In imposing a twelve month sentence, the judge said that the use of the false passport was designed to undermine immigration control; that he had had regard to what was said in Adebayo ; and distinguished Olasunkanmi on the ground that the appellant was not young and knew perfectly well what she was doing when she purchased the false passport.

18. In our judgment the present case falls into the category of case considered in Mutede , Carneiro and Olasunkanmi . Despite what was said in Adebayo , there is a valid distinction to be made between use of a false passport to gain entry and its use to gain work. It is true that in Mutede and Carneiro no passport was used and that in Olasunkanmi a false passport was used, but by someone who was not an overstayer. However, we do not regard these distinctions as placing the case in the Kolawole category.

19. In our view a sentence of twelve months' imprisonment was excessive. We shall substitute for it a sentence of six months' imprisonment. To that extent this appeal is allowed.

20. MISS KING: My Lords, may I address your Lordships on the terms of the deportation? As is helpfully pointed out in the summary, because the sentence was one of twelve months' imprisonment the appellant is automatically liable for deportation.

21. THE LORD CHIEF JUSTICE: Yes.

22. MISS KING: Do I need to deal with that issue?

23. THE LORD CHIEF JUSTICE: Yes, please.

24. MISS KING: It has been, of course, established that in an isolated offence, even a serious offence, which is committed by somebody of good character, that it would be to the detriment of the country if they were to remain. The relevant considerations, of course, are the appellant's criminal history and the circumstances of the offence. The case of Ben Abbots established that there should be a distinction drawn between those who enter the country by fraudulent means and those who are convicted of offences which are related to the circumstances in which they entered the country. In my submission, this is a case where the court could find that the appellant is not a potential detriment to the country. She is not a dangerous or a serious offender and it is a case in which your Lordships, in my submission, could use your discretion not to make a recommendation for deportation.

24. THE LORD CHIEF JUSTICE: Very well. Thank you.

( The court conferred )

25. MR JUSTICE CHRISTOPHER CLARKE: We are minded to make a recommendation. It seems to us in the light of the fact that this offence was committed in order to circumvent immigration control, that that is a consequence that should follow.