the treatment by the criminal justice system of disadvantaged groups, such as ethnic minorities, the unemployed, the mentally disordered and, to a lesser degree, women.15 Scholars of criminal justice and sentencing have neglected the situation of foreigners, paying barely any attention to the decision-making process before the courts. The result of this oversight has been that we simply know very little about sentencing patterns in cases involving illegal border crossing. Most non-nationals convicted of immigration offences are sentenced to a term in prison. In the vast majority of these cases alternative sanctions are not considered. Unfortunately, there is no statistical data on the type of sanctions imposed on foreigners convicted for ‘fraud and forgery’ offences since, unlike the Prison Service data, sentencing data is not disaggregated by the nationality of the defendant. But, sentencing guidelines, case-law and judicial practices suggest that foreigners in these circumstances are very likely to receive a custodial term if convicted. According to sentencing guidelines and case-law, offences of this kind should be generally punished with immediate custodial sentences.16 In the leading case of R v Dhajit Singh17 the Court of Appeal stated that cases involving the use of false document ‘will almost always merit a significant period in custody... usually within the range of 6 to 9 months even on a guilty plea by a person of good character’ [at 492]. Such a penalty range was later increased in R v Kolawole18 to between 12 and 18 months. The main justification for this increase was that ‘international events in recent years and the increase in public concern which they have generated, justify deterrent sentences at a higher level’ [at 6]. Similarly, in cases involving the offence of entering the UK without a valid document, the Court has stated that a custodial sentence is the appropriate sanction because of its prevalence and the need to deter others (see R v Safari and other; R v Wang).19 The Court of Appeal has distinguished between using a false document to secure entry to the country or to remain, and using it for obtaining work by a person who has been allowed to be in the country. In R v Mutede,20 the Court reduced a conviction from 14 to six months imprisonment because, based on this distinction, it considered that the sentence was excessive. Likewise, in R v Ovieriakhi,21 the judges explained the rationale for imposing custody — albeit reduced in length — in cases of use of false documents to work, as opposed to enter to the country: ‘What the use of a passport to obtain work does […] do is to facilitate the offender remaining in the United Kingdom in breach of immigration controls. For that reason a custodial sentence is usually required. But it can justifiably be less’ [at 16]. In its decision in R v Carneiro,22 the Court of Appeal judges sustained the principle that these offences should be punished with a term in prison, and can be suspended only in exceptional circumstances. The accused was caught working with a false document. After stating the reasons for considering this offence serious and thus deserving a custodial sentence, the judges upheld the decision of the lower court: Most non-nationals convicted of immigration offences are sentenced to a term in prison. In the vast majority of these cases alternative sanctions are not considered. 15. 16. 17. 18. 19. 20. 21. 22. [O]nce it is recognised that ordinarily the appropriate sentence for an offence of this kind does involve immediate custody, there has to be some good reason for the judge to act differently in a particular case for simple reasons of consistency [at 15]. In contrast, in a case involving a Zimbabwe national who had been found using a false document, the Crown Court judge suspended his sentence and ordered that he performed 80 hours of unpaid work on the grounds that the defendant could not be returned back to Zimbabwe. The judge made clear that this was ‘a very limited class of case, very restricted.’ The defendant applied for asylum and his application was Ashworth, A. 2010. Sentencing and Criminal Justice, Cambridge: Cambridge University Press, p. 423. Sentencing Guidelines Council. 2005. Guideline Judgments. Case Compendium. London: Sentencing Guidelines Council, p. 96. [1999] 1 Cr App R(S) 49O. [2004] EWCA Crim 3047. Respectively, [2005] EWCA Crim 830 and [2005] EWCA Crim 293. [2006] 2 Cr. App. R. (S.) 22. [2009] EWCA Crim 452. [2007] EWCA Crim 2170. Issue 205 Prison Service Journal 41