No: 2005/04221/A2
Neutral Citation Number: [2006] EWCA Crim 818
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday, 24th March 2006

B e f o r e:

MR  JUSTICE  McCOMBE

MR  JUSTICE  GROSS

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R E G I N A

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AGRON  AHMATI

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MR M STRADLING appeared on behalf of THE APPELLANT

MR R WOOD appeared on behalf of THE CROWN

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J U D G M E N T
Friday, 24th March 2006

MR JUSTICE McCOMBE:  Mr Justice Gross will give the judgment of the court.

MR JUSTICE GROSS:

1.	On 26 April 2005, at the Norwich Magistrates' Court, the appellant, Agron Ahmati, 26 years old, pleaded guilty and was committed to the Crown Court for sentence.  On 22 July 2005, in the Crown Court at Norwich, before His Honour Judge Darroch, he was sentenced as follows: for obtaining leave to enter/remain in the United Kingdom by deception (charge 1), nine months' imprisonment; and for obtaining pecuniary advantage by deception (offence 2), nine months' imprisonment.  The total sentence was therefore nine months' imprisonment and he was recommended for deportation.  He appeals against the recommendation for deportation only by leave of the single judge.

2.	The question which the single judge flagged a long time ago was that pressure should be put upon the Home Office to enquire into an asserted marriage by the appellant to a Portuguese woman, hence making him a spouse of a citizen of the European Union.

3.	The history of what follows, on the material available to us, is lamentable.  Successive letters from the Criminal Appeal Office to the Home Office drew no response, resulting, as far as we can see, in a considerable expenditure of public money that might have been avoided.  We go no further than that today for reasons which will become apparent.  

4.	Only this week we have been informed that the Home Office wrote to the appellant on 1 December 2005 to say that they proposed to take no further action in respect of the recommendation for deportation.  We were told by counsel this morning that on 21 December 2005 the appellant was given a residence permit, no doubt on the basis that he was a spouse of a European Union citizen.  It is self-evident that if those matters had been made clear at the time, as they should have been, these proceedings would have been rendered either considerably shorter or unnecessary.  It is not satisfactory that, even when after considerable efforts from this court to obtain representation from the Home Office today, those concerned with the matter have sent along an unfortunate individual who had no responsibility for it whatever and who has simply been deputed to come to this court today.

5.	In the circumstances we propose to allow the appeal on one ground only, namely that in the light of the action taken by the Home Office on its own account since the hearing of the matter in Norwich, any recommendation has been overtaken by events.  Having said that, we would observe that the recommendation, when made, was entirely correctly made in our judgment.  The judge was right on the authorities as they then stood.  If there was any doubt about that, the recent authorities of R v Bennabas and R v Carmona show just how right he was.  But the Home Office, as we have underlined (and as it is of course entitled to do), has taken a decision not to act on that recommendation.

6.	In the circumstances, for that reason alone, there is no point in maintaining the recommendation.  For that reason the appeal is allowed.

7.	We do not leave it there.  In the light of the brief history which we have outlined, we shall fix a date for the Home Office to show cause why it should not pay the costs of all parties to this appeal in the light of what has happened before.  We do not pre-judge the outcome of that, but it will be for the Home Office to show cause why it should not do so.  We anticipate a hearing of no longer than two hours.  It will be listed before the present constitution of this court at a date to be fixed.  We underline, so that there is no doubt whatever in the matter, that any evidence served on behalf of the Home Office must come not from the unfortunate individual deputed to be here today, who knows nothing of the matter through no fault of his own, but from someone with responsibility for it, at whatever senior level that involves.  

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