The appellant went to the United Kingdom in August 1993. After marriage to a British national, he was granted indefinite leave to remain in the country. That marriage was dissolved. On 13 June 2002 he married his co- defendant. In September 2002 the appellant obtained from a bureau in London, by payment of £440, what purported to be a degree of Bachelor of Laws with Honours in Criminal Law granted by Trinity College, Delaware, USA.
By December 2002, the appellant was allegedly involved in the smuggling of migrants and was posing as a solicitor. Specifically, he was accused of having procured a fraudulent British passport and a certificate of British naturalization for a female (M.H.), whose illegal entry into the United Kingdom he facilitated. He would have perceived, by deception, two sums of £3500 from M.H.. She travelled to Romania with such documents and the falsified nature thereof was discovered. It was alleged by the prosecution that the appellant falsely represented to M.H. that (i) he was a qualified solicitor, (ii) worked for the Home Office, (iii) was authorised to facilitate her application for a certificate of British nationality and a British passport, (iv) could supply such documents and (v) was acting in good faith. The offending in respect of M.H. would have occurred between 1 January to 27 November 2003. Another individual (B.) acquaintance of M.H., delivered to the latter photographs and personal details of himself so that a lawyer procured British identification documents in his name. He never met the lawyer.
The appellant further obtained £5000 from three other Romanian nationals by making representations similar to those made to M.H. The three migrants had entered the UK illegally in 1998. They would have been told of a lawyer with connections with the Home Office who could help obtain a British passport and certificate of naturalisation. They had meanwhile discovered that an acquaintance of them had been arrested for being in possession of false documents procured by the appellant. When the appellant contacted them saying the identity documents were ready, they agreed to meet him in a coffee shop. They did not bring the additional £5000 requested by the appellant. When the latter realized this, he declined delivering the documents.
At subsequent stages of proceedings, the prosecution adduced new evidence, notably to contest the allegations of the appellant that he was not the person sought. Specifically, C.M., a British national then living in Romania declared to have been involved in assisting Romanians to enter the UK illegally. At the end of November 2002 eight out of a group of 11 illegal immigrants who were being brought into the UK by C.M. were caught at Dover (England, United Kingdom). A telephone call was placed to a lawyer with the same name as the appellant, who subsequently met with C.M. at Dover and gave him a document advertising a 24 hour non stop helpline which had on it the appellant's telephone number as well as a business card with the appellant's name. CM declared that the person who met him admitted to be involved in assisting the illegal entry of migrants into the United Kingdom, including through the provision of fraudulent passports. The description given by C.M. of the person he met did not coincide with the appellant.
On his arrest, there were found in the applicant’s possession business cards with the inscription of the appellant's name, and "LLb(Hons), solicitor, of Tiko Solicitors, 24 Hr. Criminal Emergency Services". There were, however, no such solicitors. Furthermore, during the search of his house, authorities found photographs of B. and personal details of the other three Romanian nationals afore-mentioned.
In ascertaining the facts, authorities relied on documental and testimonial evidence as well as the outcome of searches and seizures.
Legal findings
The appellant was charged with, and convicted of, several counts of falsification of documents and facilitation of illegal entry.
For further details see “Other background” under “Persons Accused”, “Procedural History” and “Commentary”.
RomaniaUnited Kingdom of Great Britain and Northern IrelandGranted British citizenship in May 2003.
On appeal, the Defence argued on different basis. As far as relevant for the purposes of this analysis, the most important relates to the validity of the charge for facilitation of illegal entry. The appellant denied all accusations. It was maintained that an elaborate conspiracy had been set up to "frame him" as the person who was acting as the lawyer. According to the appellant, if he had been involved, then there was no dishonesty as those who paid him for documents, must have realised that it was all a "scam". The Defence also argued the evidence adduced by the Prosecution at later stages of the proceedings relating to persons other than victims of the specific conduct complained of should be held inadmissible.
The Court of Appeal noted as follows:
“Any person knowingly concerned in making or carrying out arrangements for securing or facilitating: (a) the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an illegal entrant, (b) the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an asylum claimant, or (c) the obtaining by anyone of leave to remain in the United Kingdom by means which he knows or has reasonable cause for believing to include deception, shall be guilty of an offence, punishable on summary conviction with a fine of not more than the prescribed sum or with imprisonment for not more than six months, or with both, or on conviction on indictment with a fine or with imprisonment for not more than ten years, or with both."
A person commits an offence if he (a) 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, (b) knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and (c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.
In subsection (1) "immigration law" means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to – (a) enter the State,(b) transit across the State, or (c) be in the State."
Against this background, the Court of Appeal dismissed the appeal, except in relation to the conviction on one count of facilitation of illegal entry, for the reasons explained above. In this respect, it quashed the conviction. As the sentence imposed on that count was concurrent, the quashing had no impact on the overall term of imprisonment the appellant had to serve.
NOTE: As per United Kingdom’s law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating factor (see e.g. SHERLOC Database of Legislation – United Kingdom.