Muhammad Bashir & Others [2019] EWCA Crim 1229
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In R v Muhammad Babar Bashir and others [2019] EWCA Crim 1229, the Court of Appeal (Lord Justice Fulford, Mrs Justice May and Mr Justice Swift) increased sentences imposed on three offenders for immigration fraud involving the abuse of the Home Office Tier 4 student visa system, after a reference by the Attorney General under section 36 of the Criminal Justice Act 1988.
On 16 October 2018 in the Crown Court at Manchester, Mr Bashir was convicted after trial of two counts of conspiracy to facilitate breaches of United Kingdom immigration law contrary to section 1(1) of the Criminal Law Act 1977. Mr Nallamothu was convicted on one of those counts. On 9 July 2018, on the day of trial, Ms Nayyar had pleaded guilty to one such count. On 31 January 2019 Her Honour Judge Nicholls sentenced Ms Nayyar to 27 months’ immediate imprisonment. On 22 March 2019 Mr Bashir, who had absconded, was sentenced in his absence to a total of 6 years’ imprisonment (5 years on count 1 and 12 months consecutive on count 3). On the same day Mr Nallamothu was sentenced to 24 months’ imprisonment suspended for 2 years with a 5‑month electronically monitored curfew.
The offences involved the systematic sale of confirmations of acceptance to study (CAS) – unique reference numbers required for Tier 4 student visa applications – through sham colleges that provided no genuine education. Mr Bashir set up St John College in Ashton‑under‑Lyne, which obtained a sponsor licence in July 2011 but by September 2012 was operating as a vehicle for fraud. Together with Mr Nallamothu, who acted as his agent, Mr Bashir sold CAS “with or without English” in breach of Tier 4 rules. Between October and December 2012, 955 CAS were issued by St John College, compared to its earlier genuine allocation, and Mr Nallamothu transferred more than £60,000 to Mr Bashir in a 10‑day period alone. Mr Bashir used three assumed identities to manipulate the Home Office online database and distance himself from the fraud, including a hijacked identity purporting to be the purchaser of the college. The sponsor licence was suspended on 29 December 2012 and revoked on 19 February 2013.
Following the demise of St John College, Mr Bashir became involved with Ms Nayyar and Kinnaird College, which she owned and for which she was the sole authorised user of the Home Office system. After its sponsor licence was reinstated on 29 January 2014, Ms Nayyar sold 352 CAS to Mr Bashir and his brother under an agreement dated 25 March 2014. Between February and May 2014 she issued all 352 CAS, receiving fees of £856,600. She later claimed falsely to have sold the college to a man named Bilal Shahid for £5,000, though Mr Shahid had left the United Kingdom and Ms Nayyar remained the sole bank signatory. Mr Bashir and his brother paid approximately £94,000 into the Kinnaird accounts, and some £120,000 in cash was found in the loft of Ms Nayyar’s home.
Overall the three offenders facilitated 1,307 breaches of immigration law. At £500 per CAS, the proceeds were estimated at about £650,000. Of the 352 Kinnaird applicants, 282 remained in the United Kingdom, 28 were removed and 42 departed voluntarily. In interview Mr Bashir denied involvement in a bogus college and claimed duress. Mr Nallamothu said he acted as an agent and otherwise made no comment. Ms Nayyar asserted the agreement was legitimate and also made no comment.
Her Honour Judge Nicholls found the motivation purely commercial and the criminality unsophisticated, exploiting a system with weak safeguards. She identified Mr Bashir as having been involved since 2012 but acknowledged he had originally intended St John College to be genuine. For Ms Nayyar the judge took a notional sentence of 5 years after trial, allowed 20% credit for the late plea, then reduced the total to 27 months to reflect her health, family impact and delay. Mr Nallamothu received a suspended sentence because the judge considered him likely to be rehabilitated, his role less central, and the offending limited to two months in 2012.
On behalf of the Attorney General, Mr Duncan Penny QC submitted that all three sentences were unduly lenient. He identified as aggravating features the ongoing nature and scale of the offending, the use of assumed identities and forged documents, the commercial motivation, the systematic abuse of trust placed in the licence holders by the Home Office, the involvement of strangers, and the planning and premeditation involved. In Mr Bashir’s case, repetition across two colleges and the involvement of others were highlighted. In Mr Nallamothu’s case, his knowledge of the CAS system and the speed and volume of transactions were emphasised. In Ms Nayyar’s case, the breach of trust, use of a forged sale document, and rapid exhaustion of the CAS allocation were underlined.
Mr Mark Harries, for Mr Bashir, accepted repetition and that the CAS allocations were exhausted, but argued the offending was not sophisticated, occurred over a short period, involved compliant students, was now old, and that Mr Bashir’s poor physical and mental health and low risk of reoffending meant the 6‑year sentence was not unduly lenient. Mr Imran Shafi, for Mr Nallamothu, emphasised delay, his client’s modest benefit, his short period of offending, his peripheral role, previous good character and the impact on his family. Mr Ashraf Khan, for Ms Nayyar, emphasised the value of her plea, the 5‑year starting point, her loss of good character, her mental health difficulties, a positive prison report, treatment for breast cancer, and a violent assault on her husband during the proceedings.
The Court of Appeal reviewed the relevant authorities, including R v Kao & Ors [2011] 2 Cr App R(S) 4 (where a 9‑year starting point was indicated for a sham‑college fraud), Attorney General’s Reference No 28 of 2014 [2014] EWCA Crim 1723 (in which Treacy LJ set out ten non‑exhaustive factors for assessing immigration facilitation offences, including repetition, duration, commercial motive, the number of individuals involved, degree of organisation and recruitment of others), and Attorney General’s References Nos 49 and 50 of 2015 [2015] EWCA Crim 1402 (where sentences of 8 and 5 years were substituted for visa‑fraud offences involving 177 applications). The Court emphasised that ease of commission provided no mitigation: the scheme’s weaknesses required dishonest exploitation. The fraud involved significant sums, a finite CAS allocation that was exhausted, and a breach of the important trust underpinning the points‑based system.
The Court held that the judge had adopted too low a starting point. For Mr Bashir, the starting point should have been no lower than 7 years given his leading role and breach of trust. Taking account of totality and mitigation, the Court quashed the 1‑year consecutive sentence on count 3 and substituted 3 years consecutive, making a total of 8 years’ imprisonment. For Mr Nallamothu, the Court rejected the submission that his role was peripheral: he played a critical part uploading misleading information. The starting point should not have been less than 5 years, reduced to 4 years after mitigation and delay, and the Court substituted an immediate custodial term of 4 years. He was to receive full credit for half the 157 days spent on a qualifying curfew before sentence. For Ms Nayyar, the starting point should also have been 7 years; allowing 20% for the plea and significant mitigation, the Court substituted 4 years’ imprisonment.
At a further hearing the Court considered whether Mr Nallamothu should receive credit for the 76 days he had spent under curfew as part of the suspended sentence order. Mr Penny QC submitted the matter was discretionary, as section 240A of the Criminal Justice Act 2003 applies to qualifying curfews imposed as bail conditions, not to curfews forming part of a sentence that had been quashed. The Court accepted it had a discretion and, treating the position analogously to bail curfew, reduced Mr Nallamothu’s sentence by half the curfew period (38 days) to 3 years 11 months’ imprisonment. Mr Nallamothu was ordered to surrender to South Yorkshire Police Station by 4pm that day.
In short, the Court of Appeal allowed the Attorney General’s reference and increased the sentences to 8 years for Mr Bashir and 4 years (reduced by 38 days to 3 years 11 months) for Mr Nallamothu and Ms Nayyar, reflecting the seriousness of systematic immigration fraud, the breach of trust inherent in abuse of the sponsor‑licence system, and the need for deterrence.
R v Kao & Ors [2011] 2 Cr App R(S) 4
Attorney-General’s Reference No 28 of 2014 [2014] EWCA Crim 1723