Ali, R v [2015] EWCA Crim 43

Case No 201402061 C2[2015] EWCA Crim 43
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
His Honour Judge Bishop
T20127498
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/02/2015
Before
LADY JUSTICE RAFFERTYMR JUSTICE FOSKETTHIS HONOUR JUDGE CAREY DL (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION
Between
REGINAAppellantNAZAKAT ALIRespondent
Matthew Ryder QC and Michelle Butler for AppellantJohn McGuinness QC and Catherine Rabaiotti for RespondentHearing Hearing date: 11 th December 2014
Judgment
[1]Nazakat Ali (38)on 28 March 2014 at the Crown Court sitting at Inner London was convicted of and on 22 April 2014 sentenced in respect of Counts 3 and 4, assisting unlawful immigration to a member state, contrary to section 25 of the Immigration Act 1971 to six years imprisonment, and for Count 6, encouraging or assisting an offence contrary to section 45 of the Serious Crime Act 2007, to 18 months imprisonment to run concurrently.[2]He appeals against conviction by leave of the single judge.[3]The appellant was a sole practitioner and principal of Ali Sinclair Solicitors in Forest Gate, East London, specialising in immigration law. He had clients of Indian and Pakistani nationality who had limited leave to enter and remain in the UK. The Crown’s case concerned his assisting clients to secure immigration status in the UK by ‘sham marriages’ to European nationals. By marrying a national from a country within the European Economic Area (“EEA”) settled in the UK, foreign nationals would acquire the same rights to live, work and study in the UK as their spouse, and secure their own immigration status.[4]The procedure was: i) The client applied for and obtained a Certificate of Approval (“COA”) from the UK Border Agency (“UKBA”); ii) A 3 month period followed during which notice of marriage could be given; iii) Once married the foreign national acquired rights to remain and could apply to the UKBA for a Residence Card which would confirm right of residence for 5 years; iv) After 5 years, the foreign national acquired the right of permanent residence.[5]The rights could only be acquired if the marriage were not a sham. A sham marriage is undertaken solely for immigration purposes, with no intention from the outset of living together as man and wife in a settled and genuine relationship.[6]Counts 3 and 4 pleaded that the Appellant did acts which facilitated the commission of a breach of immigration law by an individual who was not a citizen of the European Union, namely Danish Ali (“DA” count 3) and Muhammed Mughal (“MM” count 4) knowing or having reasonable cause for believing that the acts facilitated the commission of a breach of immigration law by the individual who was not an EU citizen.[7]The breach said to have been facilitated was the commission by DA and MM of an offence contrary to s24A(1) Immigration Act 1971, which provides:
“(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; or (b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him. (2) “Enforcement action” in relation to a person, means (a) the giving of directions for his removal from the United Kingdom (“directions”) under Schedule 2 to the Act or section 10 of the Immigration and Asylum Act 1999; (b) the making of a deportation order against him under section 5 of this Act; or (c) his removal from the United Kingdom in consequence of directions or a deportation order.” (a) he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or (b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him. (a) the giving of directions for his removal from the United Kingdom (“directions”) under Schedule 2 to the Act or section 10 of the Immigration and Asylum Act 1999; (b) the making of a deportation order against him under section 5 of this Act; or (c) his removal from the United Kingdom in consequence of directions or a deportation order.”
[8]The Crown’s case on counts 3 and 4 was that the Appellant helped DA and MM, two clients of Pakistani nationality, to submit bogus applications for COAs in respect of intended sham marriages to Anna Cancela, a Portuguese national, and Svetlana Balogova, a Czech national. In each case the Crown alleged that false declarations were made and false documents submitted in support, to the effect that the clients and their intended brides were living together. Both applications were refused.[9]On Count 6, alleging acts capable of encouraging or assisting in securing or seeking to secure avoidance of enforcement action by means which included deception, in contravention of section 24A of the Immigration Act 1971, believing the offence would be committed and that his acts would assist its commission, the Crown relied on covert recordings by a journalist posing as the uncle of a young man whose student visa was about to expire, but who wished to remain in the UK and was prepared to do so by undertaking a sham marriage. The Crown invited the inference that the Appellant encouraged and assisted a section 24A offence by arranging an application for a COA of what would have been a sham marriage.[10]The defenceto count 3 was that DA’s account implicating the Appellant was false, designed to divert attention from his own wrongdoing. On count 4 the Appellant denied impropriety in relation to MM’s file and suggested that it was not he but his colleagues who had dealt with MM’s case. On count 6 he claimed he sought instructions in conformity with his professional duties and that at no time did he know or have reasonable cause to believe he was facilitating breaches of immigration law.[11]The issues oncounts 3 and 4 were whether the Appellant did the acts, whether they facilitated DA’s/MM’s breach of immigration law by entering a sham marriage, whether he knew or had reasonable cause to believe his acts facilitated the breach of immigration law and whether at the time he did the acts, DA / MM intended to enter a sham marriage so as to obtain permission to remain.[12]The issues on count 6 were whether the Appellant did the acts, whether they were capable of encouraging or assisting the securing or seeking to secure the avoidance of enforcement action by means which include deception (a sham marriage), whether when he did those acts he believed the offence would be committed and that his acts would encourage or assist its commission, and whether it were more probable than not, given the circumstances he knew existed, that it was reasonable he should act as he did.[13]DA, in the UK on a visitor’s visa, told the juryhe went to Ali Sinclair Solicitors for advice upon whether he could extend it. The Appellant advised nothing could be done. He returned and the Appellant said the same, but that a man called Parvez could arrange for DA to marry an European. The Appellant rang Parvez who came to the office. The Appellant told the two to make a deal and in a restaurant downstairs Parvez said he had a Portuguese female’s passport and for £10,000 could arrange that DA should marry her. Back in the Appellant’s office Parvez gave the Portuguese passport and DA’s passport to the Appellant. DA paid £2,000 to Parvez in front of the Appellant and paid £300 as the Appellant’s fees. The Appellant signed what he said were legal papers but, said DA, he could not read them.[14]The Appellant’s staff helped him fill out a form applying for a COA. Ali Sinclair solicitors submitted supporting documents suggesting, falsely, that DA and Ms Cancela were living together at his address. DA did not know of them or instruct Ali Sinclair solicitors to submit them. He did not meet Ms Cancela or tell the solicitors he was living with anyone. He believed what he was doing was permissible. He intended and was willing to stay with her in a genuine marriage, if she converted to Islam, so as to live in the UK.[15]Formal Admissions included his submission of false documents in his application / appeal for his visitor’s visa in 2008, though to the jury DA denied knowing they were false.[16]As to count 4, Ali Sinclair solicitors prepared and submitted a 9 March 2010 application by MM for a COA to marry Svetlana Balogova. There was no evidence from MM before the jury[17]Through a woman known as Lida, Miss Balogova arrived in the UK on 26 February 2010, and began work as a prostitute controlled by Lida and her associates. Miss Balogova’s evidence was as follows: Lida said Miss Balogova would be getting married to someone unnamed to her. At a restaurant near the Appellant’s office Lida said Miss Balogova should have sex with “Ali”, whom Miss Balogova later formally identified as the Appellant. Lida and the Appellant were on familiar terms. Two Slovak girls were in the restaurant and Lida told them that they were to be married. In the office she met a man who said he had paid Lida for Miss Balogova’s favours and the two had sex next door to the waiting room. Downstairs, another man giving his name as Ali explained a like arrangement and once again she obliged, this time in the lavatory. Ali’s office was concerned with weddings. A wedding car was outside. She visited MM at his house. She did not intend to be in a genuine marriage to MM. She disavowed knowledge of a COA.[18]The Crown relied on false documents in support of a COA application of 10 March 2010 suggesting MM was living with Miss Balogova and on texts between the Appellant and an associate of Lida, Iveta Viragova. The texts were led as evidence that the Appellant was seeking from Lida and Miss Viragova female partners for his clients and relied upon as establishing his bad character.[19]As to count 6 Paul Samrai an undercover reporter made a film about sham marriages. At Ali Sinclair, wearing covert equipment Samrai posed as the uncle of a young man whose visa would expire on 31 December 2010. There was an urgent need for an extension. His exchanges with the Appellant were broadcast as part of a BBC Panorama programme in March 2011.[20]The Crown invited the inference that the Appellant encouraged and assisted an offence contrary to section 24A by arranging an application for a COA of what would have been a sham marriage. In interviewhe made no comment to the majority of questions.[21]In a submission ofno case to answer on counts 3 and 4 counsel argued that when considering ‘facilitating’ the commission of a breach of immigration law by non-EU nationals the first thing the jury had to decide was whether there had been any dishonesty on their part such as to constitute a breach or would-be breach of immigration law: Kaile [2009] EWCA Crim 2868. Since DA’s evidence was that he intended a genuine relationship with Ms Cancela, albeit in the hope that she would convert, the Crown had not proved he intended to enter into a sham marriage and was party to a breach or would-be breach of immigration law. As to MM there was no evidence of his state of mind.[22]The Crown submitted that it need not prove mens rea, that is deception or intention on the part of the person whose alleged breach of immigration law the Appellant had facilitated. Kaile was distinguishable on its facts.[23]The Judge ruled that the jury must be sure of an intent by each client to deceive the authorities by entering a sham marriage with an EU national and so remain in the UK before or at the time of the facilitation by the Appellant under s25. On count 3 it could find DA intended to deceive the authorities about the true nature of his marriage. There was sufficient evidence of the Appellant’s facilitation of the proposed marriage. On Count 4 the jury could infer from the evidence of Miss Balogova whether MM were intending a genuine and settled relationship. There was evidence on the documents of the Appellant’s facilitation of the COA application and the jury could convict on the evidence.[24]On count 3 the Appellant told the jury that Parvez Akhtar occasionally referred work though his was not a significant presence in the office and the Appellant had no idea of his involvement with DA. The Appellant did not discuss with Parvez “women for clients”. He could not remember dealing personally with DA nor recall his face when he saw it in court. What DA said was consistent with the advice the Appellant would have given but he did not remember it and did not contact Parvez on his behalf..[25]DA’s account was false, designed to divert attention from his own wrongdoing. Ali Sinclair Solicitors had not knowingly submitted false or any documents as part of DA’s application without informing him. Any documents sent in support would have been provided by DA.[26]As to count 4 he had never met Miss Balogova. It was possible she attended his office to give instructions and had seen him. He denied sexual activity with her, impossible in the office, packed with clients 9.30 a.m. to 5.30 p.m, caseworkers staying until 8.30 p.m. to 9.00 p.m. Iveta Viragovareferred cases including marriage cases. Their relationship was professional. That he had seen her after business hours was neither wrong nor sinister. She introduced him to Lida who also referred work. He did not pay for referrals. He did not know of their unlawful activity (agreed at trial) involving sham marriages. Had he been on notice he would have stopped dealing with them immediately. He did not ask them to supply women for clients. The texts had been taken out of context.[27]He denied impropriety in relation to MM’sfile. He did not recall dealing personally with MM and the file suggested that it was his colleagues. He would not have suggested supply of a woman to any client or that false documents be submitted as part of an application. He relied on the undercover video footage where he was explicit: he would not supply women as part of an application. It was not necessary to demonstrate that the couple was living together, merely that it intended so to do.[28]Javaid Lukmani, solicitor, gave expert evidence as to professional conduct. Caseworkers at Ali Sinclair gave evidence of office practices. Couples who obtained advice and assistance gave evidence. The Appellant relied on character witnesses.[29]Prior to speeches the Judge invited discussion on the law. The Appellant submitted that no jury could be sure that his help for DA or MM facilitated either’s participation in sham marriages. The marriages never took place nor were close to taking place, the chain of causation was broken very early. There was also insufficient proximity between his actions and any future sham marriage. If the Judge were against him on that the summing up would require a detailed direction on ‘facilitates”.[30]The Judge rejected the submissions, allowed counts 3 and 4 to go to the jury and did not give a detailed direction on ‘facilitates’.[31]In Grounds of Appeal as to counts 3 and 4, well-described as the primary ground, the submission is that the acts alleged were not capable in law of constituting acts which facilitated a breach of immigration law. The secondary ground is that there was insufficient evidence that DA and MM intended a breach of immigration law by entering into sham marriages.[32]As to count 6, conceded as parasitic on those going to counts 3 and 4, the Judge is not criticised for having directed the jury that evidence on one could be used in support of the others. However, the Appellant submits that, for that reason, if the convictions on counts 3 and 4 are unsafe, then it follows that the conviction on count 6 is also unsafe.[33]Developing those arguments Mr Matthew Ryder QC submits that the alleged breaches of immigration law were the other persons entering into a sham marriage. None occurred, no dates had been set, and no arrangements made. It was not even clear the marriages would take place, not least as both brides had applied to marry others. The preliminary step the Appellant took – putting others into a position to enter into a sham marriage - was of no effect: It was too remote from the alleged possible breach of immigration law by others to be capable in law of facilitating them.[34]The secondary issue is whether, in relation to the two counts contrary to section 25 IA 1971, there were sufficient evidence that the others intended to enter into sham marriages.[35]The Appellant submits that DA’s evidence was that he intended to enter into a genuine marriage assuming the bride’s conversion to Islam. It was agreed at trial that he had submitted false documents as part of his application for his visitor’s visa in 2008. Though DA denied knowing they were false Mr Ryder was obliged to concede that he had accepted a caution.[36]Since MM did not give evidence the submission is that there was no direct evidence of his state of mind or intentions had the marriage occurred. It was unclear whether he hoped to live with his bride after the marriage. No jury properly directed could have been sure he intended to enter into a sham marriage.

Discussion and conclusion

[37]Three questions arise as to Ground 1: i) Was it necessary for the Crown to prove that sham marriages took place? ii) If it were not, were the acts the jury was entitled to find the Appellant had committed capable as a matter of law of being acts of facilitation? iii) If they were, was the Judge required to give a detailed direction on ‘facilitates’?[38]The first issue, (i), was not in dispute in this appeal. The Appellant accepts that it was not necessary for the Crown to prove that the sham marriages actually took place. But the Appellant submits that the Crown was required to prove that the Appellant’s acts actually made it easier for other persons to enter into sham marriages, even if never actually did so. That issue is dealt with below.[39]The language of section 24A(1) in our view provides for the commission of an offence by (at its lowest) seeking to secure the avoidance of enforcement action. To be guilty the person need not complete the sham marriage ceremony, indeed if prevented ‘at the altar’ he would still commit the offence.[40]Alternatively, the language of section 25(1), that a person commits an offence if he 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 permits commission of the facilitating offence absent commission of the s 24A(1) offence facilitated.[41]In R v Jayaherifard & Miller [2006] Imm AR 185 at § 37 the Court said:
“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 s 25 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 & Hadakoglu [2000] 2 Cr. App. R. 50.”
[42]Other authorities support our view that an offence can be facilitated whether or not committed. In R v Adams [1996] Crim. L. R. 593,being knowingly concerned in making or carrying out arrangements for securing or facilitating the entry into the UK of anyone a defendant knew or had reasonable cause for believing to be an illegal entrant, the Court held that entry was not a condition precedent. It was sufficient that the defendant made or carried out the arrangements for securing or facilitating entry “of somebody he knows or has reasonable cause to believe would be an illegal entrant were entry to be made.”[43]Adams was approved in Eyck which held that it was for the jury to decide whether 15 Afghan nationals hidden on a ferry into Dover intended to enter or seek to enter illegally, and whether the defendant were knowingly concerned in carrying out arrangements for facilitating such. The question was “whether the charge…can relate to a would-be or an intending illegal entrant. The Court held it was the former.[44]A construction of s25 restricting its ambit to completion of the ‘marriage’ ceremony would render the section impotent. If, after the Appellant provided the alleged service, the client or bride at the altar declined to go through with the ceremony, no offence would have been committed.[45]That cannot be right. It is therefore not in dispute that a sham marriage need not have taken place for the offence to be proved. However, the Crown must still prove that the Appellant’s acts ‘facilitated’ other persons entering into sham marriages. Therefore, the key issue in this appeal is whether the acts the Crown proved the Appellant committed were capable of being such facilitation. We could, without more, so have disposed of this appeal. However, in deference to the submissions of Mr Ryder we consider, albeit in less detail than we otherwise might, the balance of the Grounds.

Were his acts capable of being acts of facilitation?

[46]The Judge’s directions on Counts 3 and 4 that the Crown need not prove the sham marriages had occurred were plainly right. Having rehearsed the acts on which the Crown relied as acts of facilitation, he told the jury it must agree the Appellant had committed at least one such and unanimously agree on which it or they was or were, and it had to be sure the act or acts facilitated a breach of immigration law by DA or MM.[47]The acts relied upon were broadly similar. The Appellant provided a bride. DA was advised to see Akhtar, and in the presence of the Appellant DA gave Akhtar £2000. The Appellant’s associate Lida brought Miss Balogova to meet the Appellant at his office then took her on to meet MM. He advised DA and MM to make a false application for a COA which he took steps to ensure was submitted to the UKBA.[48]This simple rehearsal of the acts demonstrates, without more, the strength of the Crown’s position at trial. These were acts capable of facilitating a breach of immigration law by the clients. A sham bride was essential for a sham marriage and the Appellant was instrumental in finding her. A condition precedent for a sham marriage was an application for a COA, a document the Crown proved the Appellant was instrumental in creating and submitting.[49]The Appellant relies on the OED definition of ‘facilitates’:
“to render easier the performance of an action, the attainment of a result; to afford facilities for, promote, help forward an action or process.”
He submits that an act which facilitates causes that activity to be made easier and that an act which does not does not facilitate.[50]In our view that definition confronts him with a difficulty. The acts relied upon made it easier for the clients to commit the s24A offence. It was for the jury once satisfied the Appellant committed the acts to decide as an issue of fact whether they facilitated a breach of immigration law.[51]We were taken to Dare v CPS [2012] EWHC 2074 (Admin) an appeal by case stated on facts without similarity to these. We derived no assistance from Dare.

Was the Judge required to direct the jury on the meaning of ‘facilitates’?

[52]Parliament did not find it necessary to provide a statutory definition and nothing before us persuaded us that the Judge should. There is nothing in this aspect of Ground 1.

Ground 2

[53]The Judge directed the jury that though the Crown could succeed without proving that DA or MM had committed an offence under s24A it did have to prove that by intending to enter a sham marriage that each intended to commit the offence.[54]The Judge was right to reject submissions. It was for the jury to assess DA’s state of mind, looking at all the evidence. A condition that Miss Cancela should convert was not recorded on the application. Miss Balogova told the jury she was not entering a genuine marriage, she had made another application, and it was open to the jury to infer that MM was not intending to enter a genuine and settled relationship with her. The jury thus had direct evidence that she had no intention of living in a settled and genuine relationship with MM and it was open to it to infer that his intention was the same.[55]There is nothing in Ground 2.

Ground 3

[56]The Appellant accepts that if his appeals in respect of Counts 3 and 4 fail, there is no independent challenge to his conviction on Count 6. Count 6 specifically concerned five meetings between undercover journalists and the Appellant, all recorded. The actus reus was doing acts capable of encouraging or assisting the commission of an offence under section 24A. Given the reliable contemporaneous record of these meetings, the evidence was strong.[57]There is no challenge to the Judge’s exemplary directions on the use of evidence of one count in support of another. There is nothing in this Ground.[58]For the reasons given this appeal is dismissed.