R v Valerie Ekiuwa Ovieriakhi

JurisdictionEngland & Wales
JudgeMR JUSTICE CHRISTOPHER CLARKE,THE LORD CHIEF JUSTICE
Judgment Date26 February 2009
Neutral Citation[2009] EWCA Crim 452
Docket NumberNo. 2009/00680/A7
CourtCourt of Appeal (Criminal Division)
Date26 February 2009
Regina
and
Valerie Ekiuwa Ovieriakhi
Before:

The Lord Chief Justice of England and Wales

(Lord Judge)

Mr Justice Christopher Clarke and

Mr Justice Holroyde

No. 2009/00680/A7

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London

WC2A 2LL

Miss J King appeared on behalf of the Applicant

Thursday 26 February 2009

THE LORD CHIEF JUSTICE

THE LORD CHIEF JUSTICE: I shall ask Mr Justice Christopher Clarke to give the judgment of the court.

MR JUSTICE CHRISTOPHER CLARKE

MR JUSTICE CHRISTOPHER CLARKE:

1

On 20 January 2009, at the Crown Court at Canterbury, the applicant pleaded guilty to possessing a false identity document with the intention of using it for establishing registrable facts about herself, contrary to section 25(1)(a) of the Identity Cards Act 2006. She was sentenced to twelve months' imprisonment, with a direction that 18 days spent in custody on remand should count towards her sentence. As a result she was automatically liable for deportation under the provisions of section 32 of the United Kingdom Borders Act 2007. Her application for leave to appeal against that sentence has been referred to the full court by the Registrar. We grant leave.

2

The facts of the case are these. On 2 January 2009 an enforcement team from the Immigration Authority visited a nursing home in Westgate-on-Sea, following information that a Nigerian woman was working there illegally. The appellant was spoken to. She gave her name as Valerie Ovieriakhi and said that she had arrived in the United Kingdom in April 2008 as a visitor for six months. It was accepted by the Crown that she had entered the United Kingdom using her own, valid, passport. She was arrested as an overstayer.

3

The appellant's home was searched. Officers found a false Nigerian passport in the name Valerie Michaels, which contained the appellant's photograph. The appellant accepted that that passport was hers.

4

When interviewed the appellant admitted possession of the false passport. She stated that when she entered the UK she had not intended to work, but had changed her mind. She had bought the passport in June or July 2008 for £300 so that she could obtain employment. She provided the photograph for it and knew that it was not a genuine document. She would not say who provided it.

5

The appellant is aged 40. She has no previous convictions. She pleaded guilty at the preliminary hearing. She could not have done so any earlier. She is a Nigerian who has been married for two years. She has two young children. In 2002 her husband left Nigeria to obtain work in Germany. The appellant has been refused on three occasions leave to reside in Germany. She has, we were told, received no financial support from her husband. When in Nigeria she was employed as a Vice-President of a secondary school, where she taught chemistry. The pay for that work was poor.

6

In April 2008 she came to this country to visit her sister and to recover from a car accident. He apparently hoped that her husband would be able to come to the UK from Germany to visit her, but he did not. She had left her children in the care of her parents in Nigeria. Whilst she was in the UK her father died and her family suffered financially. She obtained work in this country in a care home, for which she earned more than she did working in the school in Nigeria. However, the judge was not satisfied that she could not support her children if she worked in Nigeria.

7

The circumstances of this case present a not unfamiliar picture. The appellant, a woman of good character, lawfully enters the UK. She then remains longer than the time permitted. Next, she obtains a false passport in a name similar to her own in order to obtain a job. The work that she obtains is worthwhile and necessary. She embarks on this course of conduct because of her family difficulties and because, although she could obtain a job in Nigeria, work in the United Kingdom pays more.

8

The learned judge indicated that he found himself in some difficulty because of divergent authorities in this court. In R v Kolawole [2005] 2 Cr App R(S) 14, the appellant had in his possession two forged passports, one a Nigerian and the other a stolen British one. Both contained his photograph. The court upheld two consecutive sentences of eight months' imprisonment, making sixteen months in all, on a plea to having a false instrument with intent that it should be used, contrary to section 5(1) of the Forgery and Counterfeiting Act 1981, which has a maximum penalty of ten years. The court held that where a passport was being used or held with the intention of use, the appropriate sentence, even on a guilty plea by a person of good character, would be within the range of twelve to eighteen months.

9

In R v Mutede [2005] EWCA Crim 3208, [2006] 2 Cr App R(S) 2, the appellant had pleaded guilty to possession of a false instrument with intent and to obtaining a pecuniary advantage by deception. The appellant was a Zimbabwean woman of good character who had permission to enter the United Kingdom as a visitor. She had applied for a student visa and had a legitimate passport. In order to obtain employment as a care worker, she had used forged letters purporting to come from the Immigration and Nationality Directorate which purportedly gave her permission to stay and seek employment. The court in that case distinguished between using a false passport to obtain entry and using false immigration letters to obtain work, and substituted sentences of six months' imprisonment for the fourteen months that had been imposed.

10

In R v Adebayo [2007] EWCA Crim 878, the appellant went to an employment agency, where he produced a National Insurance card and a Nigerian passport, both of which were fakes. He had also used these documents to try to obtain a bank account. The court (consisting of two members) declined to adopt the approach in Mutede. The court pointed out that in Mutede no false passport was involved and declined to distinguish between using a false passport to enter the country and a false passport to remain here. It regarded the case as indistinguishable from Kolawole and regarded the appropriate bracket for sentencing as falling within the twelve to eighteen months' range. The court substituted for the sentence of two years' imprisonment that had been imposed, a sentence of fifteen months' imprisonment.

11

In the present case the learned judge referred to the passage at 22–45E in the 2009 edition of Archbold, which describes Adebayo as holding that Kolawole applied with full force where it was a passport that is used to obtain work.

12

In R v Carneiro [2007] EWCA Crim 2170, the appellant was a Brazilian who came to the United Kingdom lawfully as a visitor and was granted permission to remain on condition that she did not take up employment. In fact, she overstayed and obtained work as a cleaner. She opened a bank account by producing a Portuguese identity card in somebody else's name, and two other documents. The card was a fake. The court reviewed a number of authorities. It pointed out that certain distinctions had been drawn in the cases: a false use of a passport to obtain entry was particularly serious; the false use of another document to obtain employment was less serious; further, a distinction had to be...

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