Kishientine, R v [2004] EWCA Crim 3352

Case No 200405837/A3[2004] EWCA Crim 3352
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 29th November 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE PILL
SIR IAN KENNEDY
Between
R E G I N ACrown-v-
Between
MICHELINE BULANKAY KISHIENTINE
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR I STRONGMAN appeared for APPELLANT
J U D G M E N T

LORD JUSTICE PILL:

On

[1]10th September 2004, at the Solihull Magistrates' Court, Micheline Bulankay Kishietine pleaded guilty to an offence of obtaining leave to enter and remain in the United Kingdom by means of deception, contrary to section 24A of the Immigration Act 1971, as amended. She was committed to the Crown Court for sentence. On 30th September, in the Crown Court at Warwick, Kishietine was sentenced by His Honour Judge Cole DL to 9 months' imprisonment. She appeals against sentence by leave of the Single Judge.[2]The appellant is a citizen of the Democratic Republic of Congo. She claims to have been a victim of the serious disturbances which have occurred there. She moved home to escape astrocities and says that she was pressed into service by rebels. She was beaten, tortured and raped. When arrested by the government forces she was again badly beaten. A Nigerian woman, she claims was working for the UN in the country, offered to help her to escape. An agent arranged a false passport with a twenty day visitor Visa for the United Kingdom, bearing her name and a false date of birth. She arrived at Heathrow on 21st June, and having had her fingerprints taken, was admitted as a visitor. She made enquiries as to how she might extend her stay once the twenty day period had expired. She was advised to claim asylum. She made her claim on 7th September, that is about two-and-a-half months after her entry.[3]She then gave genuine details, but falsely claimed that she had arrived in the United Kingdom on the day before and had not had her fingerprints taken previously, thus maintaining a false position. Her fingerprints were taken. She claimed that she had never had a passport. Checks were carried out and it emerged that the fingerprints taken on that occasion were identical to those of the person who had obtained the Visa and entered on 21st June.[4]On interview, she made admissions, including the fact that she had entered on a false passport and she indicated at the earliest opportunity a guilty plea to the offence charged.[5]The offences is under section 24A of the 1971 Act, which provides, in so far as is material:
"(1) A person who is not a British citizen is guilty of an offence if, by means which include deception by him- (a) he obtains or seeks to obtain leave to enter or remain in the United Kingdom..."
Section 31 of the Immigration and Asylum Act 1999 provides, as far as material:
"(1) It is a defence for a refugee charged with an offence to which this section applies [which includes an offence under section 24A] to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he (a) presented himself to the authorities in the United Kingdom without delay; (b) showed good cause for his illegal entry or presence; and. (c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom."
[6]On behalf of the appellant, Mr Strongman submits that the sentence imposed was, in the circumstances, and having regard to the guilty plea and absence of previous convictions, too long. He refers to the case of R v Nasir Ali [2002] 2 Cr App R(S) 32 (at 115). That was a case under section 24A, and a sentence of 18 months' imprisonment for seeking to obtain leave to enter the United Kingdom by deception was reduced to 12 months. The appellant entered the United Kingdom and subsequently made a claim for asylum in a false name, setting out false details of his birth and nationality. It does not appear to have been claimed that the claim to be a refugee was a genuine one. The case of R v Daljit Singh [1999] 1 Cr App R(S) 490, was cited by the Court in reaching the conclusion it did.[7]Mr Strongman submits that the sentence in the present case should be much reduced because there was a genuine asylum claim. Insufficient weight was given to the appellant's motivation for misleading the authorities, in that she feared returned to a country where she had been tortured and raped. The judge failed to distinguish her genuine asylum claim from one where the asylum claim was bogus. Moreover, she could not have been expected to know the rules relating to claiming asylum on her arrival, and there was a good explanation for the delayed application. Mr Strongman does not suggest that section 31 applies but submits that, in all the circumstances, a shorter sentence was appropriate.[8]The case of Singh has recently been considered in this Court in R v Kolawole (The Times November 16th 2004). It was a case where the charge was under the Forgery and Counterfeiting Act 1981 and related to the use of a false passport. The Court referred to Singh and stated, according to the report in The Times:
"For the Singh type of case, where one false passport was being used contrary to section 3 [of the 1981 Act], or was held with the intention of use, contrary to section 5(1), the appropriate sentence, even on a plea of guilty by a person of good character, should now usually be within the range of 12 to 18 months."
The Court referred to the fact that the increase in public concern justified deterrent sentences at a higher level than was appropriate when Singh was decided. In Nasir Ali, attention had also been drawn to the factor of deterrence when sentencing in cases such as this.[9]In this case, reliance is placed on the fact that the application for asylum was claimed to have been genuine and to the availability of the section 31 defence in certain circumstances. It is not available under the 1981 Act and its non-availability there may, in some cases, produce anomalies which it is not the duty of this Court to attempt to resolve now. Different offences may be charged against defendants in this position.[10]The submission remains that, even though the section 31 defence does not apply in this case, the sentence should reflect the apparent genuineness of the asylum claim. There is clearly a public interest in the maintenance of immigration control and that has been underlined not only in the earlier case of Nasir Ali but very recently in the case of Kolawole. The judge in this case did not attempt to assess the genuineness or strength of the claim to asylum under the Refugee Convention 1951 and neither do we propose to do so. That is a question for the Home Office and the appellate system provided in relation to decisions of the Secretary of State. In our judgment, it is not appropriate that the Court should routinely assess the genuineness and strength of asylum claims.[11]We accept that the application of section 31, when there is a section 24A offence alleged, may give rise to issues which, on the facts of this case, it is not appropriate for the Court to attempt to resolve. This case has been treated as one of obtaining entry by deception. The offence was committed at the point of entry and the section 31 conditions are not satisfied. Those conditions require action by the entrant which was not taken here and, in our judgment, were intended to cover a situation quite different from the present one. There are good reasons for firm action to be taken if immigration control is to be maintained.[12]In our judgment, the judge was not obliged to assess, in the circumstances of this case, the strength of the claim for asylum, nor was he obliged to treat the appellant, when sentencing her, as a person with a good claim to asylum.[13]Judges will, of course, consider all relevant circumstances when dealing with offences under section 24A, as in any other case but, in our judgment, and for the reasons given including the reference to Kolawole, the sentence imposed by the judge in this case was appropriate. We do not consider that the grounds put forward justify a reduction in a sentence which was not excessive. Accordingly the appeal is dismissed.

LORD JUSTICE PILL: You did say the Home Office, you were not sure of it, but so I can add a sentence in the judgment if necessary; my understanding this morning was that you believed the application for asylum had been put on hold pending these proceedings.

[15]MR STRONGMAN: So long as she was in prison the application was not being looked at by the Home Office. It does take some while for the Home Office to look at these application. It may simply be they have not decided.

LORD JUSTICE PILL: If you were suggesting that there was a policy decision not to proceed while the current proceedings were on, then we may want to comment on that, but I do not understand you as going that far.

[17]MR STRONGMAN: No my Lords.

LORD JUSTICE PILL: Thank you very much.

Cited in 1 later judgment