Nuro v The Home Office
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 07 February 2014 |
| Neutral Citation | [2014] EWHC 462 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 February 2014 |
| Docket Number | CO/9617/2013 |
[2014] EWHC 462 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Andrews
CO/9617/2013
Mr M Biggs (instructed by Matuala Vyas) appeared on behalf of the Appellant
Mr A Bird (instructed by The Home Office) appeared on behalf of the Respondent
This is an appeal brought by way of case stated from the decision of the Crown Court at Chelmsford on 1 March 2013 to uphold the decision of the Magistrates' Court to order the forfeiture of a sum of £6,500 pursuant to section 298 of the Proceeds of Crime Act 2002, " POCA".
The appellant, Mr Nuro, is an Albanian national who entered the United Kingdom without obtaining the requisite leave to enter in accordance with the rules of the Immigration Act 1971 ("the 1971 Act") That unlawful entry was a criminal offence under section 24(1)(A) of the 1971 Act.
It is common ground that the £6,500 in question was obtained by Mr Nuro as income for self-employed work as a handyman. Despite being an illegal immigrant, Mr Nuro obtained a National Insurance number and paid tax and insurance contributions in respect of his earnings. The question certified for the opinion of the High Court is:
"Whether it was perverse or otherwise unlawful [for the Crown Court] to decide that cash representing the appellant's profits from his working as a self-employed plasterer and decorator in the United Kingdom after unlawful entry was recoverable property within the meaning of section 304 POCA 2002, which issue turned by reason of section 242(1) on whether the cash was obtained by or in return for unlawful conduct within the meaning of section 241 POCA."
For the reasons set out in this judgment I have no hesitation in answering that question in the affirmative and allowing this appeal.
It was and is common ground that the statutory test applicable was whether the cash was obtained through (meaning by, or in return for) unlawful conduct and that the burden of proof that it was lies on the Respondent.
Section 298(2) of POCA provides, so far as is material:
"The court … may order the forfeiture of the cash or any part of it if satisfied that the cash or part A is recoverable property."
By section 304, "recoverable property" is defined as property obtained through unlawful conduct and by section 241, unlawful conduct is defined as conduct occurring in any part of the United Kingdom which is unlawful under the criminal law of that part.
Section 242 defines property obtained through unlawful conduct. Sub-section 1:
"A person obtains property through unlawful conduct (whether his own conduct or another's) if he obtains property by or in return for the conduct."
As Mr Bird (who represented the Respondent in this appeal but not below) observed, the key issue is what is meant in this context by the word "by". He accepted that there must be a sufficient causal nexus between the criminal conduct and the obtaining of the property. He also accepted that it is insufficient to satisfy the requisite nexus to demonstrate that the illegal entry was a necessary link in the chain of causation. However, he submitted that it was open to the Crown Court to make the finding on the facts of this case that the nexus was sufficient.
It is of some importance in the present case to note that it is not a criminal offence for an illegal immigrant to work as a self-employed person once he is in the country. Indeed, it is not a criminal offence for such a person to obtain a job. It is a criminal offence for an employer to employ an illegal immigrant, although in that situation it is the employer and not the employee who commits the offence.
Section 21 of the Immigration, Asylum and Nationality Act 2006 (which replaces section 8 of the Asylum and Immigration Act 1996) was to broadly similar effect. Thus, if POCA applied to the fruits of the labour of the illegal entrant (especially one who pays his tax and national insurance) it would operate so as to penalise him for not becoming a burden on the State, even although Parliament has decided not to make it a criminal offence for him to work.
It is also a criminal offence for someone who has been given leave to enter the United Kingdom on certain conditions to work in breach of those conditions. For example, if someone has leave to enter to study as a student on the condition that he must not take up a paid job, and he is found working in a coffee bar or a shop, it would seem that POCA could apply to that person's earnings. However, it would not apply because the person was in the country unlawfully but because he had committed a distinct criminal offence and those earnings would be directly linked to the commission of that offence.
Offences may also be committed under the Fraud Act 2006, (or until its repeal under the Theft Act 1968)by someone who actively deceives an employer or a client into engaging him, by, for example, falsely representing to that person that he has certain qualifications, or that he has particular authorisation to do the work concerned. Those sorts of offences can be committed by people who are in the country lawfully or unlawfully and are fact-specific. Again, if someone receives money as a consequence of a fraudulent misrepresentation which operates on the mind of the person who is deceived, that money would be liable to forfeiture under POCA.
Suppose that the person who commits that offence happens to be to be an illegal immigrant and would not have been able to deceive the employer or customer if he had not been in the country. The application of section 298 would have nothing to do with the reason for his presence in the country. The criminal offence by which the money was obtained would be the fraud.
At the time when this matter first came before the Crown Court in December 2012, the Appellant's counsel had required the Respondent to identify the type of crime relied upon. At an early stage it was submitted on the Appellant's behalf that there was no continuing criminality, because the relevant crime was committed under section 21(1)(A) of the 1971 Act on entry into the United Kingdom, and that the earning of the money was too remote.
Although there was no submission of no case to answer, it was obvious at that stage that there could be a short legal answer to the proceedings which would not necessitate the calling of evidence, and therefore the court was invited to make a preliminary ruling.
The judge adjourned the hearing and directed the service of further written arguments. Initially the Respondent relied entirely upon section 24(1)(A). It was only when a further skeleton argument was served that the Respondent sought to introduce fraud. That was the point at which the manner in which the case was dealt with below became unsatisfactory, because despite the fact that the Respondent had accepted that the money was honestly obtained and despite the fact that it had heard no evidence from the Appellant himself, the court nevertheless entertained a submission that by holding himself out as available to do work lawfully he was:
"At least impliedly representing that was fully authorised and that was a misrepresentation which on the face of it was a breach of the criminal law under, for example, section 16 of the Theft Act 1968."
The Crown Court refused to state a case in respect of the alleged unfairness of the process, but that does not mean that I cannot take into account the fact that the court proceeded to make the findings that it did without hearing any evidence. Thus it was confined to the agreed facts and to any inferences that could legitimately be drawn from those agreed facts.
The Crown Court justified its conclusion that the seized cash was recoverable property on two separate bases:
(1) That there was a causal connection between the appellant's unlawful entry into the United Kingdom and his earnings in the United Kingdom which were represented by the £6,500 cash that was seized from him.
(2) Accepting the Respondent's alternative submissions of implied fraudulent misrepresentation to which I have referred already above.
As to (1), the finding of a causal connection does not explain why it was thought to be sufficient. It appears from the judgment, however, that one matter that played a significant role in the reasoning of the Crown Court was that by entering illegally the Appellant had deprived the UK Border Agency or its predecessor of the right and opportunity to consider and impose restrictions on his employment. With the greatest of respect, that is irrelevant.
The Crown Court also took the view that entry in these circumstances should be regarded as a continuing offence, not spent or eliminated in any way by the successful crossing of the border.
Mr Bird very properly did not seek to support that finding if and to the extent that it suggested that the appellant committed an offence on each day that he remained in the United Kingdom after entry. He submitted that what the Crown Court really meant was that the offence had lasting consequences, at least in terms of the nexus required by POCA.
I must say that it is somewhat difficult to place that interpretation on what is stated by the Crown Court but whether that is what it meant or not, in my judgment the Crown Court erred in law in its approach to the causal nexus. The relationship between the criminal offence (which was a single offence committed by the unlawful entry) and...
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