Upper Tribunal (Immigration and asylum chamber), 2015-01-21, DA/01102/2013
| Jurisdiction | UK Non-devolved |
| Date | 21 January 2015 |
| Published date | 17 April 2015 |
| Hearing Date | 05 January 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/01102/2013 |
Appeal Number: DA/01102/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01102/2013
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
on 5th January 2015 |
on 21st January 2015 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
AYODEJI JOHN KAREEM
(Anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Chirico instructed by Global Immigration Solutions
For the Respondent: Mr Whitwell Senior Home Office Presenting Officer.
DETERMINATION AND REASONS
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This is an appeal by the Appellant against a determination of a panel of the First tier Tribunal composed of Judge Buckwell and Judge Lobo (hereinafter referred to as ‘the Panel’) promulgated on 21st July 2014 following a hearing at Taylor House on the 12th and 13th June 2014.
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The Appellant is the subject of a deportation order following his conviction on 18th May 2011 at Snaresbrook Crown Court on one count of conspiracy to defraud and a second count of conspiracy to acquire and use property obtained as a consequence of a criminal act. A 65 month term of imprisonment was imposed upon the Appellant who, as a result, was also served with an order for his deportation made pursuant to section 32 UK Borders Act 2007.
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The Panel considered the evidence made available and set out its findings from paragraph 100 of the determination. The conclusions are to be found at paragraphs 112 to 114 in the following terms:
112. We accept that the Appellant enjoys both private and family life in this country. Having spent some years in the United Kingdom a requirement that he should return to live in Nigeria would interfere with such private and family life rights, thereby engaging Article 8 (1) ECHR. That interference, by way of the deportation order, is in accordance with the law in seeking to protect members of the public.
113. In assessing proportionality we strive to strike a fair balance between the rights of the individual and the interests of the wider community. We take into account all family members and find that the Respondent has discharged her duty in relation to section 55 of the Borders, Citizenship and Immigration Act 2009. Further, Parliament has approved legislation which enables the removal of those who have committed offences from the United Kingdom where they are not British citizens.
114. We find that no exceptional circumstances have been established on the balance of probabilities. Additionally, and for the reasons we have set out above, we do not find that the decision by the Respondent unlawfully breaches the Article 8 ECHR rights of the Appellant. In response to such engagement the Respondent is entitled to rely upon Article 8 (2) ECHR. The Respondent's decision to deport the Appellant was in accordance with the law and not in breach of the requirements of section 6 (1) Human Rights Act 1998.
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The Appellant committed a number of serious offences of an economic nature. In his sentencing remarks HHJ N Sanders, when dealing with the Appellant and his two co-accused, set out at length the nature of the offences and reasoning behind the sentences imposed. In relation to the Appellant in this appeal the Judge stated:
Fafore, Kareem and others unknown, you are involved in a sophisticated and concerted attack on the banking credit card system by the criminal misuse of the Internet to fraudulently access and make unauthorised transfers from the bank accounts of innocent account holders to accounts in the name of other persons -- that is count 1 -- and acquired and or used money obtained by fraudulently making unauthorised transactions on the credit and debit cards of innocent account holders, count 2.
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The Sentencing Judge also notes that “now that so much banking is done on the Internet it is essential that the public should have confidence in the integrity and the security of the system. Actions which undermined that I consider to be very serious”. The Judge noted information provided by the banking industry setting out the overall size of losses suffered by way of credit card fraud which was stated for ‘card-not present-frauds’ to be £266 million and for card identity fraud £38 million for 2009 which for 2010 is said to be £226 million and £38 million respectively. The Judge noted that given these sorts of figures it is essential that the Courts make it plain to all those who are convicted of sophisticated conspiracies of this nature that they are going to be dealt with [severely] not only to punish them but to make it plain to others that the committing of such offences is a very serious matter. The same is also said to apply to the possession of such information.
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The nature of the conspiracy was said to involve the use of bogus web-pages purporting to be the banks genuine web page in which customers are tricked into supplying details of their accounts and credit and debit cards together with passwords and the answers to the memorable questions. Armed with that information the accused were able to access the accounts and transfer money to accounts which were created for the benefit of the conspiracy and then siphoned off or used to make payments. By the use of e-mail the details would easily be passed around a number of conspirators. The Sentencing Judge also notes various methods used to try to defeat the bank's internal alert procedures such as in the case of a Mrs M, whose account had £69,000 removed from it, a new joint account being set up in the name of Mrs M and a Miss S into which funds were first transferred and then amounts transferred from that account to a sole account in the name of Miss S.
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The Sentencing Judge notes there were 18 people originally traced and the total fraud attempted, excluding HBOS, in relation to them was £251,000 of which £241,000 was successfully removed. Within the e-mails of Kareem and Fafore were another 900 accounts with HBOS. Attempted £1,140,000 successful £357,000 so the totals were attempted £1,392,000 and successful £599,000. It is said that specific to the IP addresses there was attempted £121,000 and successful £39,000.
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The Sentencing Judge also noted in relation to the second count; that relating to cards, 15,800 cards were identified of which 10,813 were current. 1,451 were specifically identified in relation to the defendants in relation to which the information showed specified losses of £570,000 or an average of £393 per card. The Judge considered that in light of the number of cards involved it was appropriate to take the average figure provided by the banking industry witness of £336 per card giving, it appears, a potential loss of over £5 million although the figure in the sentencing remarks is £3,000,143,000. Count 2, the conspiracy, the charge is losses in excess of £2 million to which Kareem and Fafore pleaded guilty. The Judge accepted that the maximum figures are not those of the defendants before him but that they did show the nature, extent and sophistication of the conspiracies to which they were parties. Kareem is said to have had 2,660 debit cards, 1,552 bank accounts and 15 bogus web-pages. Specifically in relation to Mr Kareem the Judge stated:
So far as Mister Kareem is concerned, there are credits of some £61,650 into various bank accounts of his and I point out in his case there are a large number of bank accounts.
It is also significant is that he set up an account with Liberty Reserve. This is an Internet bank based in Costa Rica and the statement from DS Harvey establishes and explains how difficult it is to obtain any information from those accounts. It shows two things; firstly, the degree of sophistication; and, secondly, the knowledge that the use of such an account makes investigation at very best very difficult.
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The Sentencing Judge notes the impact upon the victims by reference to two named individuals. One, a Mrs Finch, had £3,500 removed from her account. In her statement she said the following: “The money that was taken out meant that we had nothing in our bank accounts as our savings had been stolen. I first noticed this when I went in May 2008 to go to the shops to do some shopping. I went to get money from the cash-point. There was only £3.00 there when there should have been £3,500. At the time I felt devastated and shocked as I knew it wasn't me and knew it wasn't my...
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