Illegal entry is not a general aggravating factor in sentencing: R v Ahmed [2025] EWCA Crim 1235

Introduction

This commentary examines the decision of the England and Wales Court of Appeal (Criminal Division) in R v Ahmed [2025] EWCA Crim 1235 (29 August 2025), a case that clarifies how, if at all, a defendant’s immigration status may influence sentence. The applicant, a 30-year-old asylum seeker from Iraq with no prior convictions, pleaded guilty to robbery, affray, and possession of an offensive weapon following two related but distinct incidents at retail premises on Kilburn High Road. The sentencing judge treated the applicant’s illegal entry into the United Kingdom as an aggravating factor and imposed an immediate custodial sentence of 15 months.

On appeal, the key issues were:

Whether a sentencing judge can treat an offender’s illegal entry or immigration status as a general aggravating factor.
Whether consecutive sentences were wrongly imposed for counts said to arise out of the “same incident.”
Whether, cumulatively, the sentence was manifestly excessive.

The Court of Appeal refused leave to appeal against sentence. However, it issued an important clarification: illegal entry is not, of itself, a freestanding aggravating factor of general application. Any relevance of immigration status must be tied to the particular facts of the offending. The Court also gave practical guidance on consecutive versus concurrent sentences and reiterated the limited weight of destitution as mitigation where violence or threats are used.

Summary of the Judgment

The Court held:

Immigration status as aggravation: There may be narrow circumstances in which immigration status is relevant (e.g., illegal entry for the purpose of committing crime), but it is wrong to treat illegal entry as an aggravating factor of general application. The Crown Court is not equipped to investigate asylum claims at sentencing; any systematic approach belongs to the Sentencing Council.
Consecutive vs concurrent sentences: The two episodes (Sainsbury’s affray and Boots robbery) were separate incidents. Imposing consecutive sentences was permissible; a concurrent structure with an uplift on the lead offence would also have been acceptable.
Sentence not manifestly excessive: The robbery was correctly placed in category B3 with a two-year starting point (range one to four years), and the affray in category B3 (starting point: high-level community order; range up to 36 weeks’ custody). With mitigation and guilty plea credit, and applying totality, the overall sentence of 15 months was not manifestly excessive.
No reduction merely to “mark” error: Although the judge wrongly treated illegal entry as a general aggravating factor, the Court declined to reduce the sentence simply to mark that error, emphasising that the appellate task is to determine whether the sentence is wrong in principle or manifestly excessive.
Leave refused: The application for leave to appeal against sentence was refused.

Detailed Analysis

The factual matrix and sentencing exercise

At approximately 4:00 pm on 16 February 2025, the applicant attempted to enter Sainsbury’s, brandishing what staff perceived to be a sharp object (later confirmed a screwdriver), behaving aggressively, and making lunging movements—conduct forming the affray count. Staff and security were distressed; the incident lasted around ten minutes.

At around 4:15 pm the applicant entered a nearby Boots, collected high-value items, and left while holding a screwdriver, ignoring requests to leave. Police detained him with two hairdryers (one with a security tag still attached) and the screwdriver. He admitted offending in interview, citing homelessness and a desire for cigarettes (and later to probation, food).

The sentencing judge treated the supermarket episode as affray (culpability B, harm at upper end of category 3; starting point: high-level community order; range up to 36 weeks) and the pharmacy episode as the lead offence of robbery (category B3: starting point two years; range one to four years). For the weapon offence, concurrent sentencing applied under the totality principle because weapon possession was already baked into the other counts. The judge credited 25% for the guilty pleas, imposed 12 months for robbery, and three months consecutive for affray (reduced from a post-plea four and a half months to three months for totality), totalling 15 months.

Precedents and authorities cited

R v Lounds [2014] 1 Cr App R (S) 75 and R v Harper (1968) 52 Cr App R 21: Cited by the applicant to argue that where a judge breaches a fundamental tenet of sentencing, this Court should reduce the sentence to mark the error even if the ultimate sentence is not manifestly excessive. The Court accepted that such interventions have occurred but stressed they are fact-specific and not a general practice. Here, the correct appellate focus remained whether the sentence was wrong in principle or manifestly excessive.
Sentencing Council Guidelines: The Court applied the robbery and public order (affray) guidelines in categorising culpability and harm, starting points, and ranges. It also invoked the totality principle and credit for guilty plea regimes.

The Court’s legal reasoning

1) Immigration status as an aggravating factor

The Court drew a clear line between:

Case-specific relevance: Immigration status may exceptionally be relevant if it aligns with recognised aggravating factors connected to the offence—for example, illegal entry for the purpose of committing offences, engaging planning, organisation, or professional criminality. Even then, orthogonal aggravators (e.g., significant planning) may address culpability adequately without relying on immigration status.
General application: Treating illegal entry or illegal presence as an aggravator merely because it is true of the defendant is wrong. It risks sentencing for uncharged wrongdoing, triggers complex collateral inquiries into asylum merit, and would require the Crown Court to conduct assessments for which it is institutionally unsuited. Such a systemic shift, if ever to be adopted, is for the Sentencing Council to consider holistically, not case-by-case at the Crown Court.

Applying those principles, the judge below did not identify any offence-specific feature making illegal entry relevant. To the extent he regarded illegal entry as generally aggravating, he was wrong. Importantly, the Court emphasised that any aggravation must be tied to the circumstances of the offending, not to the mere fact of immigration status.

2) Whether to reduce sentence to “mark” the error

Relying on Lounds and Harper, the applicant argued for a reduction notwithstanding the absence of manifest excess. The Court rejected a blanket approach. While reductions have been made in some cases to mark a fundamental breach of principle, the established appellate test remains whether the sentence is (i) wrong in principle or (ii) manifestly excessive. On the facts, even assuming a small uplift was applied for immigration status, overall the sentence fell well within guideline ranges and proper evaluative judgment; a “marker” reduction was not warranted.

3) Consecutive vs concurrent sentences

The incidents were temporally and spatially distinct: Sainsbury’s (affray) followed by Boots (robbery), with different victims and separate criminality. Consecutive sentences were therefore principled. The Court added that the alternative approach—making affray concurrent but adjusting the robbery sentence upwards for overall criminality—would also have been unimpeachable. The choice lies within the sentencing judge’s evaluative discretion, subject to the totality principle.

4) Guideline categorisation, mitigation, and totality

Robbery (B3): The use of a screwdriver to intimidate rendered the case close to the high culpability threshold (had it been a bladed article, it would fall within the higher category). The judge’s selection of 16 months pre-plea—despite a two-year B3 starting point and a range up to four years—reflected a modest overall assessment and limited mitigation.
Affray (B3): With threats, a weapon, and public distress (including nearby shoppers and a child), the upper end of B3 was justified. A six-month after-trial figure was within range; 25% plea credit and then a totality reduction to three months consecutive was orthodox.
Mitigation: Destitution and homelessness can mitigate acquisitive crime, but the Court emphasised that where violence or threats are used, its weight reduces considerably. First-time offending and letters of remorse were acknowledged. The weapon possession sentence was ordered concurrent to avoid double counting.
Totality: Properly applied—offensive weapon concurrent, affray consecutive but compressed to recognise the combined criminality without over-punishment.

Impact and implications

The decision has several immediate impacts on sentencing practice:

Clarification on immigration status: Sentencers should not treat illegal entry or unlawful presence as a general aggravating factor. Any reliance on immigration status must be justified by an offence-specific nexus (e.g., criminal purpose in entering; organised criminality). Absent such a link, immigration status is irrelevant to seriousness and must not be used to increase sentence.
Institutional competence and efficiency: The Court cautioned against turning sentencing into an inquiry into asylum merits or immigration history. Such investigations belong in the Tribunal system. This guidance will help avoid proliferating satellite disputes that would delay and complicate Crown Court sentencing.
Sentencing Council’s role: If a broader policy treatment of immigration status is to be considered, it should be evaluated and articulated by the Sentencing Council across relevant guidelines, with due regard to practicalities and rule-of-law considerations.
Consecutive vs concurrent guidance affirmed: Where there are distinct incidents, consecutive sentences remain appropriate, subject to totality. Equally, concurrency with an uplift on the lead offence is a permissible alternative. Appellate scrutiny will remain outcome-focused rather than formulaic.
Destitution as mitigation: The Court’s comments reinforce a long-standing theme: poverty and homelessness can mitigate acquisitive offending, but where violence or intimidation is used, the mitigation is limited.
“Marker” reductions are exceptional: Even where a sentencing error is identified, the Court will not invariably reduce the sentence to mark the error. The yardstick remains whether the sentence is wrong in principle or manifestly excessive.

Complex concepts explained

Aggravating factor: A feature that increases the seriousness of the offence or the offender’s culpability. It must relate to the offence or its context and be proved to the criminal standard if disputed and outcome-determinative.
Mitigating factor: A feature that reduces culpability or harm, such as lack of previous convictions, genuine remorse, or personal circumstances like homelessness. Its weight varies with offence type—less weight where violence or threats are involved.
Robbery guideline “B3”: “B” denotes medium culpability; “3” denotes lowest harm. The guideline specifies a starting point (here, two years) and a range (one to four years), from which the judge adjusts up or down for aggravation/mitigation.
Affray guideline “B3”: Medium culpability, category 3 harm, with a starting point of a high-level community order and a range up to 36 weeks’ custody, adjusted for case features.
Totality principle: When imposing sentence for multiple offences, the court must ensure the total sentence is just and proportionate to overall criminality, avoiding double counting and ensuring neither over- nor under-punishment.
Consecutive vs concurrent: Consecutive sentences run one after another; concurrent sentences run at the same time. Distinct incidents or victims often justify consecutive terms, subject to totality.
Credit for guilty plea: A reduction in sentence to reflect utilitarian value and acceptance of responsibility. Here, 25% credit was applied, consistent with a plea not at the first reasonable opportunity but still significantly early.
Manifestly excessive: An appellate standard asking whether the sentence is plainly too high when measured against guideline ranges, comparables, and all relevant factors.

Practical guidance for sentencers and advocates

Do not treat illegal entry or immigration status as a routine aggravator. If relied upon, identify a clear, offence-specific link and ensure the factual basis is proved to the requisite standard.
Resist collateral immigration inquiries at sentencing. Where asylum or status complexity arises, confine sentencing to offence-related facts. If broader policy treatment is desirable, it is for the Sentencing Council.
When dealing with a series of offences in close temporal proximity, decide structure (consecutive vs concurrent with uplift) by reference to distinctness of incidents and totality. Provide concise reasons for the structure chosen.
Account for weapon use across counts without double counting: if the same weapon underpins both an offence of violence and a possession count, a concurrent approach to the possession count is often orthodox.
Calibrate the mitigation for destitution carefully, particularly where violence or threats escalate culpability.

Conclusion

R v Ahmed delivers a measured but significant clarification: immigration status—and specifically illegal entry—is not a general, freestanding aggravating factor in sentencing. Any reliance on such status must be closely tied to the facts of the offence (e.g., entry for criminal purpose), and sentencing should not devolve into an inquiry into asylum merits, a task for the Tribunal system. The Court also affirmed orthodox approaches to consecutive and concurrent sentencing and reiterated well-settled principles on totality, plea credit, and the limited mitigation available where acquisitive crime involves violence or intimidation.

Although the judge below erred in treating illegal entry as aggravation of general application, the Court focused on the final outcome: the properly reasoned categorisations, measured application of mitigation and plea credit, and a totality-compliant structure produced a sentence that was not manifestly excessive. The case therefore stands as both a doctrinal clarification and a practical reminder that appellate sentencing review remains rooted in principled outcome assessment, not error-spotting in isolation.