refused. He was found in possession of false identity documents, which he used to obtain work. The Attorney General appealed this decision arguing that it was too lenient. After reiterating that deterrent sentences were necessary to protect the public from terrorism and the breach of immigration controls, the Court of Appeal judge decided that those principles do not apply to the case: ‘any possible connection with schemes or arrangements to avoid immigration control could safely be excluded’ and added that it was not a lenient sentence but a merciful one: ‘It was a merciful sentence, in a case where the exercise of the judicial quality of mercy was entirely appropriate’23 [at 26 and 32]. In this final case, it appears that the impossibility of returning the defendant to his home country was central in the decision to suspend the sentence. I will return to this point later in the paper. The lower courts follow the guidelines set by the Court of Appeal. In a review of court files from Uxbridge Magistrates’ Court and Isleworth Crown Court (both with jurisdiction over Heathrow airport) on cases involving people accused of various immigration crimes, I found that judges were generally reluctant to consider noncustodial sentences in these cases. In Uxbridge, in all the 229 cases the 232 accused for immigration offences received a term in prison upon conviction. None of them had their sentences suspended and in none of these cases was a pre-sentence report to examine alternative sanctions ordered. In one of them, the magistrates explained: ‘we would normally ask for a [pre-sentence] report before awarding a custodial sentence but, in your case, there are no matters with which probation could assist.’ Most of these people were charged with the offence of being unable to produce an immigration document upon arrival to the country. They were caught in the airport when trying to enter the UK. In the crown court, the judges suspended the sentence of ten out of 106 immigration defendants. One other person was discharged. All of the defendants who had their sentences suspended were accused of facilitating others and were either legal residents or naturalised British citizens. In all the cases involving undocumented migrants convicted for an immigration crime the judges imposed imprisonment as a sanction. The conduct penalised by immigration-related offences, the judges argued in their decisions, undermined a number of policy goals, including the control of the borders, the security of the country, and the integrity of international travel documents. They are serious enough to warrant a custodial sentence. However, why the behaviours penalised by these offences are so serious is barely spelt out. Paradoxically, the UKBA does not deem these conducts as serious. As explained above, most of these offences are not prosecuted because they are considered low-level offences best dealt with by removal. In case of conviction, people accused of failing to provide a valid passport are usually punished to a short term in prison that ranges from two to six months. Even though facilitation is considered a more serious offence — punished with a maximum of 14 years imprisonment — people convicted for this offence are more likely to have their sentences suspended than those accused of document fraud. Hence, the seriousness of the offence does not substantiate the sanction imposed. The decisions on these cases are primarily based on deterrence, both general and individual: to deter others and to prevent the accused from reoffending. As explained above, sentencing guidelines and caselaw state that prevention is the main justification for punishment. Because the conducts penalised by immigration-related offences are prevalent — particularly at ports of entry — and have the potential to undermine the system of immigration controls, they should be prevented. Even though this justification is repeated tirelessly by magistrates and judges, the deterrent effect of punishment in these cases is dubious. First, many of the ‘undocumented arrivals’ are not aware that their actions are subject to criminal punishment in Britain. Because many travel with the aid of facilitators, they have usually little or no control over travel arrangements and choice over country of destination.24 Second, many of them are escaping persecution and appalling social and economic conditions. In these circumstances, the possibility that the threat of a sanction affects their reasoning and actions is slim. In other words, they are hardly The decisions on these cases are primarily based on deterrence, both general and individual: to deter others and to prevent the accused from reoffending. 23. 24. 42 Attorney-General’s Reference Nos 1 & 6 of 2008 (Simbarashe Dziruni) (Jean Claud Justin Laby) [2008] EWCA Crim 677. See R (on the application of K) v Croydon Crown Court [2005] EWHC 478 (Admin) [at 11] quoted in Brennan, R. 2006. Immigration Advice at the Police Station. London: The Law Society, p. 156. Prison Service Journal Issue 205