Immigration offences - Statute - Defendants being involved in conspiracy to assist unlawful immigration

R v Kapoor and others: Court of Appeal, Criminal Division (Lord Justice Hooper, Mr Justice Wilkie and Mr Justice Stadlen): 9 March 2012

Section 25 of the Immigration Act 1971 provides, so far as material: '(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 EU; (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.'

Section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004 provides: 'A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which - (a) is in force, and (b) satisfactorily establishes his identity and nationality or citizenship.'

It was alleged that the defendants were involved in a conspiracy to assist unlawful immigration (the conspiracy). The conspiracy was alleged to have involved the defendants, who were UK passport holders, travelling to India and purchasing flights in their names for travel from Mumbai to London with a stop in Bangkok (the journey). Upon check-in at Mumbai, the defendants were 'through checked' and would be given two boarding passes, one for each section of the journey. Upon arrival in Bangkok, the defendants would not board the Bangkok to London flight and subsequently left the airport. The boarding cards for the Bangkok to London flight would be passed via an escort to a group of Afghan nationals seeking entry to the UK (the entrants).

The entrants would board the Bangkok to London flight using the defendants' boarding cards and using false Indian passports in the names of the defendants complete with false UK visas to enable them to clear security before boarding the plane. Once on the aircraft, the escort would take the documents back from the entrants. The entrants would subsequently disembark at London and would claim asylum upon arrival, in relation to which, as intended, they would be unable to produce any passport or equivalent immigration document. The defendants would make their way back to London some time later. It was alleged that two successful entries were made into the UK and that a further entry was thwarted in Bangkok.

The prosecution relied upon section 25 of the Immigration Act 1971 (1971 act), together with breach of section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004 (the 2004 act). In January 2011, the four defendants were convicted of conspiracy to assist unlawful immigration to a member state contrary to section 1 of the Criminal Law Act 1977 (count 1) and three of the defendants were convicted of a further similar conspiracy (count 2). They received total sentences ranging between five and six years' imprisonment. The defendants appealed against conviction and sentence. They conceded that, if the appeal were allowed, it was open to the court to substitute convictions for conspiracy to commit the offence under section 2 of the 2004 act.

The principal issue that fell to be determined was the meaning of the words 'immigration law' in section 25(2) of the 1971 act. The prosecution submitted, inter alia, that section 2 of the 2004 act was an immigration law for the purposes of section 25 of the 1971 act. The defendants contended that the use of the expression 'entitlement to enter' in section 25 of the 1971 act was only designed to capture particular types of immigration laws concerned with a person's substantive right of entry, as opposed to other immigration laws which were concerned with procedural aspects of the manner in which such substantive rights of entry might be sought to be exercised.

Accordingly, the defendants submitted that the convictions were unsafe. Consideration was given, inter alia, to Council Directive (EC) 2002/90 'defining the facilitation of unauthorised entry, transit and residence' (the directive). The appeal would be allowed. For the purposes of section 25(2) of the 1971 act, an immigration law was a law which determined whether a person was lawfully or unlawfully either entering the UK, or in transit, or being in the UK. If a person facilitated, with the necessary knowledge or reasonable cause to believe, the unlawful entry or unlawful presence in the UK of a person who was not a citizen of the EU, then he committed the offence (see [36] of the judgment).

It appeared that that interpretation reflected what the directive was seeking to achieve (see [37] of the judgment). Applying that interpretation to the instant case, the appeal would be allowed (see [40] of the judgment). Convictions for conspiracy to commit the offence under section 2 of the 2004 act would be substituted. Sentences of two years' imprisonment would be substituted for the sentences of six years' imprisonment and sentences of 21 months' imprisonment would be substituted for the sentences of less than six years' imprisonment. All of the sentences would be concurrent (see [45], [46] of the judgment). R v Javaherifard [2005] All ER (D) 213 (Dec) considered.

Mark Seymour (instructed by ABV Solicitors Ltd) for the first defendant; Shiraz Rustom (instructed by Asghar & Co) for the second defendant; Neil Griffin (instructed by ABV Solicitors Ltd) for the third defendant; Shiraz Aziz (instructed by Mackenzie & Co) for the fourth defendant; Edward Brown QC and Alexandra Felix (instructed by the Crown Prosecution Service) for the Crown.