R v VILLA AND ANOTHER

COURT OF APPEAL (CRIMINAL DIVISION)

14 Cr App R(S) 34

Hearing Date: 30 April 1992

30 April 1992

Index Terms:

Recommendation for deportation -- whether properly made against defendant who has refugee status.

Held:

A recommendation for deportation may be made against an offender who has had refugee status; the sentencer should consider giving a direction for release under Immigration Act 1971 Schedule 3 if the defendant receives a sentence not involving immediate custody, or is likely to be eligible for release before a decision on deportation is made. The appellants were sentenced to 30 months' immediate imprisonment and 18 months' imprisonment, suspended, for obtaining money by deception from the Department of Social Security. They were recommended for deportation. The appellants had been granted refugee status some time before the trial. Held: the grant of refugee status to an individual did not amount to an exemption from the provisions of the Immigration Act 1971 by virtue of section 8(2) of that Act. The principles on which the court should act in considering a recommendation for deportation were set out in Nazari (1980) 2 Cr App R(S) 84. The principal question was whether the offender's presence in the country was detrimental. The final decision on a recommendation was with the Secretary of State, who could take account of a variety of considerations, including the political situation in the offender's home country, which the Court could not. There was no ground for quashing the recommendation. As the male appellant had now been released on licence from his sentence of imprisonment, the Court would give a direction under Schedule 3 to the Act for his release pending the Secretary of State's decision on the deportation order.

Notes:

Recommendation for deportation, Current Sentencing Practice K1-5.

Cases cited in the Judgment:

Nazari (1980) 2 Cr App R(S) 84.

Counsel:

I Kumi for the appellants; G Pulman, QC and JC Kellett for the Crown. PANEL: Farquharson LJ, Turner, Cazalet JJ

Judgment One:

FARQUHARSON LJ, (reading the judgment of the court): The Court is presently concerned with two appeals against sentence in respect of both the male and the female appellant. Mr Villa was sentenced to a term of two-and-a-half years' imprisonment on March 8, 1991, and Mrs Villa to a term of 18 months' imprisonment suspended for two years. In relation to each of the two appellants the learned judge made a recommendation for their deportation. Mr Kumi on their behalf has not persisted in the appeal in so far as it relates to the length of the sentences. That is in the judgment of this Court not altogether surprising. Here were this couple coming to this country as refugees seeking sanctuary and almost from the moment of arrival, certainly in the case of Mr Villa, they were swindling the Department of Social Security of various sums of money on the basis of the false documents to which we have already referred in giving judgment in the application for leave to appeal against conviction. We do not propose to go through the facts of the case again. They all appear in our earlier judgment. We turn now to the appeal in so far as it relates to the recommendation for deportation. The powers of the Court in that regard are in part set out in section 3(6) of the Immigration Act 1971, which says: "Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so." Subsection (8) reads: "When any question arises under this Act whether or not a person is a British citizen, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is." Section 6(1) of the same Act reads: "Where under section 3(6) above [which is the subsection we have just read] a person convicted of an offence is liable to deportation on the recommendation of a court, he may be recommended for deportation by any court having power to sentence him for the offence unless the court commits him to be sentenced or further dealt with for that offence by another court." It emerges from those sections that the Court has power to make a recommendation for deportation if it can be shown first, that the offender is not a British citizen and secondly, that he has been convicted of an offence for which he is punishable by imprisonment. Both those conditions apply here. They were established before the Court. So prima facie the Court had jurisdiction to make the recommendation it did. However, the subsection provides that if the appellant in this case, the deportee under the subsection, can show that he is entitled to any exemption under this Act, provided he can prove it, he can avoid the recommendation being made. That is provided for under section 8(2) of the Act which states: "The Secretary of State may by order exempt any person or class of persons, either unconditionally or subject to such conditions as may be imposed by or under the order, from all or any of the provisions of this Act relating to those who are not British citizens." 14 Cr App R(S) 34 It appears that both appellants had been granted refugee status certainly at some time before the trial. That, we are informed, was revoked a few days ago on April 9, 1992. We pause to consider whether the granting of that status came within the provisions of section 3(6) and of section 8. After hearing argument we are clearly of the opinion that it is in no sense an order made by the Secretary of State exempting the appellants or either of them from the provisions of this Act. It follows therefore that the learned judge was empowered in these circumstances to make recommendations that he did. We have been helpfully reminded by Mr Pulman of the principles upon which the Court must act in deciding whether to make a recommendation. They are set out in the case of Nazari (1980) 2 Cr App R(S) 84. The question that the Court has to pose is whether the accused's continued presence in the United Kingdom is to its detriment? That was a matter for the learned judge. Unless we can be satisfied that there was no basis upon which he could so conclude there are no grounds for allowing the appeal, at any rate in that regard. Having regard to the nature of the offences here perpetrated, to which we have already made some reference, we are quite clear that the learned judge was entitled to conclude that their continued presence was to the detriment of the United Kingdom. We have had various arguments addressed to us by Mr Kumi about the difficulties these two appellants will face should they be deported from this country. It is possible he says that the wife may be deported to Sweden and the husband to France, or possibly he may be refused entry into that country. The difficulty over their status, argues Mr Kumi, is a feature which the learned judge should have taken into account in deciding whether to make a recommendation at all. It is of the greatest importance that emphasis is made as to the distinction between the functions of the court and those of the Secretary of State. The Court has power to make a recommendation -- no more. That recommendation can only be made if the statutory provisions are complied with and the judgment in relation to whether the presence of the appellants is detrimental to the United Kingdom has been made by the learned judge. Certainly the making of a recommendation gives a wide power to the Secretary of State because it enables him if he wishes to do so to make an order of deportation. But before doing so, whether he is dealing with a refugee or somebody (as in this case) whose status has been withdrawn, it is his task to decide whether on all the facts it is right for the order to be made. He will consider the situation in the countries to which it is likely the appellants will be returned, their political systems and whether the appellants are in fact under threat as they have been in their own country in the past. All these matters are not for the Court to consider. They are entirely within the province of the Secretary of State and it is not for us to interfere. Furthermore, the consideration that should be given as to whether other persons are likely to be affected by the making of a recommendation have been considered in this case. As both husband and wife are the subject of a recommendation it appears that the learned judge was entitled to take the view he did in that regard also. In all those circumstances we are clear that the appeal against the recommendation for deportation must fail. The burden of proving any exemption lay upon the appellants. In the result no attempt has been made to do so. However, the position is that Mr Villa would have been granted parole in the month of December 1991 in respect of the sentence that was imposed in this 14 Cr App R(S) 34 case. Therefore were it not for the present proceedings, he would have been paroled. There is a power in the court, to which Mr Kumi drew our attention, under Schedule 3, paragraph 2(1A) to the Act, which says this: "Where a recommendation for deportation made by a court on conviction of a person is in force in respect of him, and he appeals against the conviction or against that recommendation, the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation." We have heard argument about this and it has not been an easy decision to make. On the one hand the Court feels instinctively it is wrong for a person who has completed his sentence, or that part of the sentence which the authorities require, to then be further detained because he may be deported. On the other hand there is the risk, which we recognise, that if he is granted his freedom there is an opportunity for him to go into hiding or take such other course as he may to avoid the effects of the Secretary of State's revocation of his refugee status. There are powers in the Court to make conditions when exercising the power directing him to be released. Schedule 3, paragraph (4) states: "Where the release of a person recommended for deportation is directed by a court, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police as the court may direct." We have come to the conclusion, not without some hesitation, that having regard to the length of time that is likely to elapse before a decision is finally made about the presence of the appellants in this country, it would be right that we should avail ourselves of the powers to which we have just referred. Accordingly we direct that he will be released from custody without setting aside the recommendation made by the learned judge. It will be a condition of that release that he resides and continues to reside at 28 Lingwood Road, London E5, and that twice daily, that is to say before midday and after 6.00 pm, at such time as may be mutually arranged, he shall report to the officers at the Hackney police station.

DISPOSITION:

Judgment accordingly

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