Re G [2019] EWHC 1737 (Admin)

The applicant sought a certificate of inadequacy. A confiscation order in the sum of £849,300 was imposed following proceedings in 2005 for serious immigration offences for which 8 years imprisonment was imposed.

The offending involved false marriages in India of vulnerable women subject to exploitation. The debt, with interest, stood at £1,352,911.10 at the time of the hearing, and the applicant was paying £20 per month. A restraint order made following the confiscation order was discharged as the receiver had no success in realising the sums held in bank accounts. The magistrates, in setting the £20 payment level, accepted that, in view of the passage of time, that it would be an abuse for the applicant to be penalised by imprisonment for failure to discharge the sum due under the confiscation order.

The Crown opposed the application for a Certificate of Inadequacy arguing that she had failed to discharge the burden by demonstrating that she did not have the means to discharge all or part of it. Although the statute does not explicitly cast the burden on the applicant the normal principle of, she who asserts must prove, applies. “The burden is on the applicant to demonstrate by the adduction of relevant admissible evidence that it is more likely than not that she does not have the means to discharge the sum due or any part of it”.

The assets held were said to be monies in Indian bank accounts along with agricultural land and property in India that had never been identified. If assets did actually exist in India it is likely they would be held under the arrangement of the Hindu Undivided Family and so would be “well-nigh” impossible to realise without the co-operation of the family, which would be doubly difficult in this case as both parents had died recently.  The applicant was almost being asked to prove a negative, whilst she had referred to ownership of assets during her trial nothing had happened since to demonstrate they actually existed.

A Certificate of Inadequacy was granted but it was made clear that this did not extinguish the confiscation order, so if it were to transpire that there were assets, or she was the beneficiary of a windfall, it would not prevent appropriation of those funds to the sum due.