Cautioning Foreign Nationals for Document Offences
From 6 December 2010, the Ministry of Justice and UK Border Agency (UKBA), working with the police service and the Crown Prosecution Service (CPS), are operating a 6 month pilot scheme to test a policy to divert from prosecution foreign national offenders who:
- commit specified document fraud offences and
- agree to be administratively removed from the UK.
The scheme will enable the use of simple caution administered by the police as an alternative to prosecution, on the basis that the suspect complies with their removal from the United Kingdom.
Criminal defence solicitors should be aware of the existence of this pilot in order to provide criminal law advice to people who may be affected. Immigration solicitors should be aware so that they can provide immigration advice in relation to their client’s situation if affected by this pilot.
2. The scope of the pilot
The policy applies to foreign nationals who do not have leave to enter or remain in the United Kingdom who are suspected of committing an identity document fraud offence.
It will mean that a simple caution will be administered to certain offenders who consent to being removed from the UK on a voluntary basis.
2.1 Who is affected
The policy applies only to those who would normally be prosecuted for:
- seeking to enter the UK with forged passports or other fraudulent identity documents, or without any documents at all; or
- using forged identity documents to gain employment or for other purposes whilst already in the UK.
This will be done through the use of simple caution administered by the police, as an alternative to prosecution on the basis that the individual is complying with their removal from the United Kingdom.
Those who commit these offences and are suitable to be immediately administratively removed from the UK rather than prosecuted or cautioned will continue to be dealt with in this way during these pilots.
The policy does not apply to:
- Those seeking asylum; there will be consideration of whether a section 31 Immigration and Asylum Act defence applies in all cases;
- Offenders against whom there are reasonable grounds to believe they are involved in human trafficking, either as a victim or perpetrator;
- Youths or individuals with mental health problems;
Home Office circular 016/2008 sets out the circumstances where a simple caution cannot be considered for an offender.
2.2 Offences to which the policy applies
The offences to which the pilot policy applies are:
- Section 2 of the Fraud Act 2006:
Where a person dishonestly makes a false representation and intends, by making the representation, to make a gain for himself or another or to cause loss to another.
- Section 25(1) (a), (b) or (c) of the Identity Cards Act 2006:
Where a person with intent has in his/her possession or under his/her control:
(a) an identity document that is false and he/she knows or believes to be false;
(b) an identity document that was improperly obtained and that he/she knows or believes to have been improperly obtained; or
(c) an identity document that relates to someone else.
- Section 25(5)(a), (b) or (c) of the Identity Cards Act 2006:
Where a person has in his/her possession or under his/her control without reasonable control:
(a) an identity document that is false;
(b) an identity document that was improperly obtained; or
(c) an identity document that relates to someone else.
- Section 3 of the Forgery and Counterfeiting Act 1981:
Where a person uses an instrument which he/she knows or believes to be false, with the intention of inducing another to accept it as genuine.
- Section 24 (1)(b)(i) Immigration Act 1971 :
Remaining beyond time limited by leave.
- Section 24A (1) Immigration Act 1971 :
Where a person who is not a British Citizen, by deception:
(a) obtains or seeks to obtain leave to enter or remain in the United Kingdom ; or
(b) secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him/her.
- Section 2 of the Asylum and Immigration Act 2004:
Not having a travel document at a Leave or Asylum interview.
The policy will not apply to the following offences:
- Section 25(3) of the Identity Cards Act 2006:
Where a person with intent makes or has in his/her possession or under his/her control:
(a) any apparatus which to his/her knowledge is or has been specifically designed or adapted for the making of false identity documents; or
(b) any article or material which, to his/her knowledge, is or has been specifically designed or adapted to be used in the making of false identity documents.
- Section 25(5)(d) of the Identity Cards Act 2006:
Where a person has in his/her possession or under his/her control without reasonable excuse any apparatus, article or material which has been specially designed or adapted for the making of false documents or to be used in the making of such documents.
- Section 3 of the Fraud Act 2006:
Where a person dishonestly fails to disclose to information which he/she is under a legal duty to disclose and intends by failing to disclose the information to make a gain for himself/herself or to cause loss to another.
- Section 4 of the Fraud Act 2006:
Where a person who occupies a position in which he/she is expected to safeguard, or not to act against, the financial interests of another person dishonestly abuses that position and intends, by means of the abuse of that position to make a gain for himself / herself or to cause loss to another.
- Section 6 of the Fraud Act 2006:
Where a person has in his/her possession or under his/her control any article for use in the course of or in connection with any fraud.
- Section 7 of the Fraud Act 2006:
Where a person who makes, adapts, supplies or offers to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud or intending it to be used to commit, or assist in the commission of, fraud.
3. Advising clients affected by the pilot
Criminal defence practitioners should advise the suspect that:
- acceptance of a simple caution will be recorded on their UK criminal record, even though it will be immediately spent under the Rehabilitation of Offenders Act 1974, as amended by schedule 10 of the Criminal Justice and Immigration Act 2008;
- he or she should seek advice from an immigration solicitor about the effect a caution may have on any future immigration applications.
Criminal defence practitioners should be aware of the defence of duress that can arise in respect of people who are victims of human trafficking. You should consider the case of R v O [2008] EWCA Crim 2835 in this regard. Application of the principles set out in that case was considered by the Court of Appeal in the case of LM, MB, DG, Betti Tabot and Yutunde Tijani v R [2010] EWCA Crim 2327.
Criminal defence practitioners should also be aware that s 31 of the Immigration and Asylum Act 1999 provides a defence to an offence under s 25 (1) of the Identity Cards Act 2006. Section 31 IAA 1999 provides that it is a defence for a refugee, charged with an offence to which the section applies, to show that they have:
- come to the UK directly from a country where their life or freedom was threatened
- presented themself to the authorities in the UK without delay
- showed good cause for their legal entry or presence, and
- made a claim for asylum as soon as was reasonably practicable after their arrival in the UK .
Criminal defence practitioners may be unqualified to provide advice in relation to immigration issues, such as asylum or visa applications. You should therefore consider providing the suspect client with the means to contact an immigration solicitor if they wish to do so. The UK Border Agency and the police in the areas affected by this pilot will hold lists of immigration solicitors in the relevant vicinity.
In particular, immigration advice may be directed to:
- whether there might be any lawful basis on which the person might seek to regularise their stay or obtain permission to remain in the UK;
- whether removal would be in breach of any policy of the Secretary of State or of the UK’s obligations under international conventions, in particular the European Convention on Human Rights; and
- whether and if so, what, implications might arise from a caution having been accepted, if any future visa application were to be made.