No: 2008/2435/A3 

Neutral Citation Number: [2008] EWCA Crim 1655
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 2 July 2008
 
B e f o r e:
LORD JUSTICE RICHARDS 
MR JUSTICE GOLDRING 

MR JUSTICE AKENHEAD 
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R E G I N A 

v 

OLUYINKE OLAJIDE
 
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Mr H Blake‑James appeared on behalf of the Appellant
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J U D G M E N T
1.	MR JUSTICE AKENHEAD:  On 4th October 2007 at Blackfriars Crown Court before His Honour Judge Hillen, the appellant pleaded guilty to possession of a false identity document, namely a passport, with intent to establish registrable facts and received a custodial sentence of 10 months' imprisonment and the judge issued a recommendation for deportation.  Mr Olajide is Nigerian.  He came to this country, the court has been told, some eight years ago.  He had been granted leave to appeal against sentence by order of the single judge.
2.	The facts of the case can be briefly stated.  Early in the morning on 20th August 2007 the appellant came to the attention of the police because he was driving a car very slowly.  The police stopped him and asked him for identification.  He said he was not a permanent resident in this country, he was a visitor and he had a Dutch passport.  His car was checked.  It was found that he had no insurance and he was arrested.  
3.	At the police station he was asked to provide proof of his identity and shortly afterwards his partner appeared at the police station with a Dutch passport bearing his name.  The passport was examined and found to be a forgery, with the appellant's photograph simply overlaid on the original; the laminate page did not have the usual features.  We have been told today that the passport was in fact, albeit a forgery, in the name of Mr Olajide.
4.	When he was interviewed he admitted that the passport was a forgery but thereafter declined to comment.  
5.	The judge in his sentencing remarks on 4th October 2007 clearly had had a lot of previous and recent experience of a large number of these types of offence and he described the problem of the use of false passports as prevalent: "indeed it is almost of epidemic proportions".  He went on to say that the sentence was particularly serious and sufficiently serious to justify the sentence of imprisonment.  There is no appeal against the sentence of imprisonment in this case.  He then said this:
"Therefore you will serve one‑half of the 10 months, five months less 44 days, in prison.  Normally you will then be released.  However, given the fact that you been here since 2000 and since 2003 you have had a false passport ‑‑ effectively a false identity and false nationality; a Dutch passport enabling you to travel throughout the European Union ‑‑ I am of the view that your continued presence in this country is a potential detriment.  Therefore I make a recommendation to the Home Secretary that on completion of the custodial part of your sentence, you be deported." 
He then went on to describe the mechanics of what that meant.
6.	The grounds of appeal are broadly that the recommendation for deportation was wrong in principle and that there was insufficient evidence to support the view that the appellant's continued presence in this country would present a potential detriment in view of his good character and personal mitigation.  It is said that the judge erred in taking his immigration status into account when considering whether to make a recommendation.  
7.	Some eight authorities from the case of Khandari in 1979 to the case of Mutede in 2006 are referred to in counsel's advice that comes with the application for permission to appeal.  This morning we have been referred to another four more recent authorities in this court which were not referred to in the appeal notice.
8.	The only appeal therefore is against the recommendation made by the learned judge at first instance for deportation.  The offence itself was a sufficiently serious one to demand a prison sentence, but the fact that a defendant is sent to prison does not mean automatically that a recommendation for deportation must be made.  The criteria for a deportation recommendation stem from the statute and previous decisions of the court.  The court broadly can recommend deportation for a non British person over 17 who is convicted of any offence punishable by imprisonment.  There are certain exceptions irrelevant to this appeal.  Authorities such as Nazari establish that a deportation recommendation should only be made when the accused's continued presence in this country is to its, the United Kingdom's, detriment.  Many cases of established serious offences, such as murder and major drugs offences, fraud and manslaughter, will give rise to an irresistible inference that such detriment exists.  Other cases such as Nunu show that less serious offences may not give rise to that inference.  
9.	We have been referred to the cases of Khandari and Benabbas.  It is not necessary for us to set out those cases.  We have been referred this morning to a number of authorities, principally the case of Araoye 11th July 2007 [2007] EWCA Crim. 1922 and the case of Bakare and Bakare [2008] EWCA Crim. 950, the decision in the latter case being some ten weeks ago.  It is probably simpler if we refer, rather than to the detail of these cases, which are broadly of similar facts to the current case, to the judgment of Foskett J in Bakare and Bakare.  At paragraphs 9 and 10 he said: 
"Whilst, as was said in Araoye, every case must ultimately depend on its own facts and a balancing exercise is required, there are a good number of parallels between that case and this.  Each appellant in this case is of good character and neither had entered the country illegally nor used a false passport to maintain his or her position vis viz the immigration authorities.  The use of passport was to obtain work which each has carried out apparently satisfactorily.  They had each since their arrest, as we understand it, applied to the Home Office for leave to remain with those in long residence in the United Kingdom who are dependent on them.  We do not know the outcome of those applications but they have, like the appellant in Araoye, sought to regularise the position.  
Having reviewed the judge's remarks when making recommendation, we are not satisfied that he did fully and accurately distinguish between those who use a false passport to gain entry to the UK and those who use one to secure employment.  It is of course entirely correct to say that each use helps to maintain and encourage the false passport industry.  However the immediate sentences of imprisonment imposed in this case (and indeed in Araoye) represent the punishment and deterrent features of the sentencing regime that serve to underline the court's attitude to offences that have that effect.  There is no need, or at least in the particular circumstances of this case, to add a recommendation for deportation for the same reason as imposing the sentence of imprisonment which appears to be what the judge did here.  On the basis of all the authorities that were fully reviewed on in Araoye, it seems to us that it is for the Home Office to decide, having regard to all the circumstances including any relevant policies and facts of the convictions, whether the appellants should be entitled to remain.  That exercise is as was said in Araoye, 'different from that applicable in the criminal courts as part of a sentencing exercise.'"   
10.	What we have been told here is that the applicant is of good character.  He has worked here for some years.  He came as an asylum seeker some eight years ago.  He overstayed, presumably after his application for asylum was turned down.  We are told that there is an application to remain in this country, but we do not have any detail about that.  We are told that he has a British partner with whom he cohabits and he has lived with her for some four years.  It is clear that certainly the evidence presented shows that the false passport was acquired to obtain work.  There is no suggestion other than that he otherwise behaved well in this country but much of the information relied upon is unverified.  The Crown is not represented today.  
11.	It is proper to ignore the applicant's immigration status, currently illegal though it is, and we do ignore it.  The question which arises is whether there is detriment to this country in the light of his good character and, bar this offence, his blameless existence here.  Cases such as this are very fact‑specific and it is clear from the authorities to which we have been referred this morning that the judge at first instance has to do a balancing exercise.  This court is satisfied that the learned judge through no particular fault of his own did not carry out that balancing exercise.  It does not appear that any relevant authorities were referred to him and certainly none of the more recent authorities to which we have been referred, indeed the Bakare case had not been heard.  
12.	Given that the judge has not done the balancing exercise, the court is unable to support the recommendation that he made and in those circumstances this court allows the appeal and the recommendation for deportation is set aside.