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Judgments - R v Asfaw (Appellant) (On Appeal from the Court of Appeal (Criminal Division))


SESSION 2007-08

[2008] UKHL 31

on appeal from: [2006] EWCA Crim 707




R v Asfaw (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Carswell

Lord Mance



Edward Fitzgerald QC

Raza Husain

Richard Thomas

(Instructed by Moss & Co)


Clare Montgomery QC

Julian Knowles

(Instructed by Crown Prosecution Service)

Intervener (UNHCR)

Michael Fordham QC

Shaheed Fatima

(Instructed by Baker & McKenzie LLP)

Hearing dates:

18, 19 & 20 FEBRUARY 2008






R v Asfaw (Appellant) (On Appeal from the Court of Appeal (Criminal Division)

[2008] UKHL 31


My Lords,

1.  The Criminal Division of the Court of Appeal (Lord Phillips of Worth Matravers CJ, McCombe and Gross JJ: [2006] EWCA Crim 707) certified the following point of law of general public importance as involved in its decision now under appeal:

“If a defendant is charged with an offence not specified in section 31(3) of the Immigration and Asylum Act 1999, to what extent is he entitled to rely on the protections afforded by article 31 of the 1951 United Nations Convention Relating to the Status of Refugees?”

Differently expressed, the question is whether, to the extent that the protection given to a defendant by section 31(3) of the 1999 Act does not match that which the United Kingdom is bound in international law to give by article 31 of the Refugee Convention, our domestic law gives a defendant any remedy. The formulation of the question clearly assumes that the offence charged against the defendant is not within the scope of section 31(3) of the 1999 Act but is within the scope of article 31 of the Convention.

2.  According to her evidence, the appellant is an Ethiopian national who had been imprisoned, tortured and raped in Ethiopia on account of her alleged support for student activism. Her father also was persecuted and died in police custody. She decided to leave Ethiopia and travel to the United States to claim asylum. With the help of an agent she left Ethiopia by air, travelling on a false Ethiopian passport. They stopped in an unknown Middle Eastern country and remained in the airport for about three hours. They arrived in the UK on 14 February 2005 at Heathrow Airport and passed through immigration control, with the agent presenting the passport on her behalf. The agent then left her in the airport for about an hour, after which he returned and gave her a false Italian passport, in the name of Hanams Gebrele, a false driving licence in the same name and a ticket to Washington DC. He then left.

3.  It is agreed that on 14 February 2005 the appellant (then aged 28) checked in for a Virgin Atlantic flight from Heathrow to Washington. She presented the false Italian passport. She said she was Ethiopian. The official on the desk (Mohammed Hussan) recognised the passport as false and informed the police, but said nothing to the appellant and allowed her to check in. When she attempted to board the aircraft at the departure gate she was stopped. Her passport was examined and found to be false. She was arrested and taken to the police station. There she was questioned but gave no answers. Through an interpreter she told her legal representative at the police station that she wished to claim asylum and he gave evidence that he communicated this claim to the police at 5.00 pm on the day of her arrival. On 11 April 2007 the appellant was formally recognised by the Home Secretary as a refugee.

4.  The appellant was charged with two offences on which she was later indicted and stood trial at Isleworth Crown Court before His Honour Judge Lowen and a jury. Count 1 charged her with using a false instrument with intent contrary to section 3 of the Forgery and Counterfeiting Act 1981, the particulars being that on 14 February 2005 she used an Italian passport which she knew to be false, with the intention of inducing another (identified as Mohammed Hussan, the official on the check-in desk) to accept it as genuine. In count 2 the appellant was charged with attempting to obtain services by deception, contrary to section 1(1) of the Criminal Attempts Act 1981. The particulars were that she had dishonestly attempted to obtain air transport services from Virgin Atlantic by falsely representing that she was authorised to use the Italian passport in the name of Hana (sic) Gebrele. Both these counts related to the appellant’s attempt to leave this country on a Virgin Atlantic flight to Washington, and both, it seems, were based on presentation of the false Italian passport at the check-in desk.

5.  The appellant pleaded not guilty to count 1 and relied on the defence provided by section 31 of the Act. Directing the jury, His Honour Judge Lowen, said:

“There is available a defence to such a charge [as count 1] which the law has provided for persons who genuinely seek asylum. Because the law recognises that refugees may inevitably have to commit such offences as a means of seeking safe refuge. It would, you may think, be quite unjust for genuine refugees to be faced with the prospect of inevitable conviction of crime in relation to the process by which they seek to enter a safe haven. And that is why the law recognises that common sense proposition and that is why the law provides that if a person, on the balance of probability, fulfils the criteria provided for in law, then the law says they have a complete defence to a charge of this kind.”

In the light of the evidence at trial, prosecuting counsel accepted that the appellant was a refugee, but disputed that the other requirements of section 31 were met. The jury, however, acquitted, and must therefore have found that they were.

6.  Before the trial began, counsel for the appellant (Mr Richard Thomas) resisted further prosecution of count 2 on the ground that the offence charged, although not within section 31 of the Act, was within article 31 of the Convention. The judge rejected the submission. He ruled:

“The prosecution have decided to proceed in this case and take the view that those offences, catered for in section 31, are all offences which a refugee may commit involving the process of entering a safe haven. Once within the United Kingdom a person who then goes on to commit a further offence should not have a defence available to protect him or her from prosecution and conviction. That is the justification for the prosecution proceeding in this case. The logical distinction is clear.”

He went on to refer to

“the real distinction between offences which are necessary and reasonable in the quest for asylum on the one hand and those which arise as a matter of choice or convenience and it is into the latter category that the prosecution put this offence of obtaining or attempting to obtain services by deception.”

In response to this ruling the appellant pleaded guilty. After her acquittal on count 1, the judge sentenced the appellant to nine months’ imprisonment (most of which she had already served) on count 2. He said that offences of this kind undermined the whole system of immigration control and were so prevalent as to call for deterrent sentences. It is not clear what factual (as opposed to legal) difference the judge saw between the two counts.

7.  The appellant appealed against conviction and sentence on count 2. In the Court of Appeal prosecuting counsel did not question the correctness of the appellant’s acquittal on count 1, and implicitly accepted its correctness. He accepted that on the facts of this case article 31 required that the appellant should have a defence, even if charged with attempting to obtain the service of the airline by deception (see [2006] EWCA Crim 707, para 21). He accepted that both article 31 and section 31 could apply to an asylum seeker seeking to use this country as a transit post in a journey to a preferred place of refuge (para 21). He accepted that the appellant’s attempt to fly to Washington in order to seek asylum should attract no punishment if the UK were fully to comply with article 31 (para 26). He accepted that he could not support the reasoning which led the judge to impose the custodial sentence he did (para 27). Thus the issue in the Court of Appeal was a narrow one. Counsel for the appellant submitted that it was improper for a different charge, not falling within section 31, to be brought in respect of precisely the same facts (para 20). The Crown’s reply was that section 31 listed the offences to which the statutory defence should apply, that the list did not include attempted deception, and the duty of the Crown Prosecution Service was to apply the law (para 21). The court expressed its concern about some aspects of the case. It considered that if the second count had been added in the interests of immigration control, in order to prevent the asylum seeker from invoking the defence that section 31 would otherwise provide, there would be strong grounds for contending that the practice would be an abuse of process (para 24). The court dismissed the appellant’s appeal against conviction, but allowed her appeal against sentence, quashed the sentence of imprisonment and ordered that the appellant should be absolutely discharged. The certified question set out in para 1 above relates, of course, to the legal issue which then fell for decision. In the House, however, the respondent contended, for the first time, that the offences allegedly committed by the appellant fell outside both article 31 of the Convention and section 31 of the Act because they were committed in the course of trying to leave the country and not in the course of entering it or as a result of the appellant’s illegal presence here. Thus the central issue now is whether these offences, or either of them, fell within the scope, first, of article 31 and, secondly, of section 31.

Article 31

8.  During the 1920s and 1930s the League of Nations sought to address the problems caused internationally by refugees from Russia, Armenia, Germany and elsewhere. The ending of the Second World War gave the problem a new urgency and importance. Thus the Constitution of the International Refugee Organization was adopted in 1946, the Statute of the Office of the United Nations High Commissioner for Refugees was adopted in 1950 and in 1950-1951 the 1951 Refugee Convention was negotiated.

9.  The Refugee Convention had three broad humanitarian aims. The first was to ensure that states acceding to the Convention would afford a safe refuge to those genuinely fleeing from their home countries to escape persecution or threatened persecution on grounds of race, religion, nationality, membership of a particular social group or political opinion. Such refugees were not to be returned to their home countries. The second aim was to ensure reasonable treatment of refugees in their countries of refuge, an aim to which most of the articles in the Convention were addressed. The third aim, broadly expressed, was to protect refugees from the imposition of criminal penalties for breaches of the law reasonably or necessarily committed in the course of flight from persecution or threatened persecution. It was recognised in 1950, and has since become even clearer, that those fleeing from persecution or threatened persecution in countries where persecution of minorities is practised may have to resort to deceptions of various kinds (possession and use of false papers, forgery, misrepresentation, etc) in order to make good their escape.

10.  Effect was given to this third aim in article 31, which (referring to the very familiar definition of “refugee” in article 1), provides:


1.  The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2.  The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”

The respondent to this appeal submits that this article should be interpreted as meaning exactly what it says, and attaches particular importance to the words “on account of their illegal entry or presence” and “good cause for their illegal entry or presence". These words, it is said, show that the immunity of a refugee is limited to offences of entering and being illegally in a country, thus excluding offences committed when leaving an intermediate country in order to seek asylum elsewhere.

11.  It is of course true that in construing any document the literal meaning of the words used must be the starting point. But the words must be construed in context, and an instrument such as the Refugee Convention must be given a purposive construction consistent with its humanitarian aims. The Convention was negotiated against the background of then recent events, particularly in Europe. Hence the reference in the original definition of “refugee” in article 1 A(2) to “As a result of events occurring before 1 January 1951” and hence the original option for acceding states to adopt an interpretation of that expression as meaning “events occurring in Europe before 1 January 1951". Consideration of the travaux préparatoires of the Convention shows that the focus of discussion was on clandestine crossing of land frontiers. There was little or no discussion of air transportation, doubtless because air transport had not become a means of escape used by any considerable number of refugees, and there was accordingly no consideration of the position of refugees changing planes in the course of escape to a country of intended asylum. The travaux show that what became article 31 went through a number of drafts and the words “coming directly from a territory where their life or freedom was threatened in the sense of article 1” did not appear in the original texts. They were inserted at the instance of the French delegate (M Rochefort), who was concerned that there were large numbers of refugees living in countries bordering on France where their lives were not threatened, and whom, if they crossed into France, the French government would wish to penalise and return: see Goodwin-Gill, “Article 31 of the 1951 Convention Relating to the Status of Refugees: non-penalisation, detention, and protection” in Feller, Türk and Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003), p 192. There was resistance to the notion that a refugee who had settled temporarily in one country should be free to enter another for reasons of mere personal convenience: Weis, The Refugee Convention 1951: Travaux Préparatoires, p 298. The UK representative favoured a certain amount of flexibility in the case of refugees coming through intermediary countries: ibid, p 301. The “good cause” requirement was also, it seems, intended to exclude refugees who wished to change their country of asylum for purely personal reasons from the immunity provided by article 31: Grahl-Madsen, Commentary on the Refugee Convention 1951 (1962-63), para (8).

12.  With the passage of time and the growth of air transport the application of article 31 to refugees in transit came to attract attention. In The Status of Refugees in International Law, vol II (1972), pp 206-207, Grahl-Madsen distinguished between different cases, the first being “A refugee who only passes through the first country of refuge, without any delay or with only a minimum of delay". Of this class of case he wrote:

“With respect to the first category, it is important to note that the practice of States is more lenient than would be expected on the background of Mr Rochefort’s above-quoted statements. Thus, refugees who pass through Austria into the Federal Republic of Germany are not penalized in the latter country on account of their illegal entry. In Belgium it is an established practice to consider a refugee as ‘coming directly’ if he arrives in Belgium within a fortnight after his departure from his country of origin. And in France each case is considered on its merits, emphasis apparently being placed on the final proviso of Article 31(1), that is to say: whether the refugee can ‘show good cause for [his] illegal entry or presence'. It seems to be the opinion of the Office of the United Nations High Commissioner for Refugees that the term ‘coming directly’ is to be interpreted in such a way that it does not impose an obligation solely on countries adjacent to countries of persecution, or — more precisely — that any person who had no factual residence in an intermediary country should be considered coming directly from a country of persecution. On this basis it appears justified to conclude that a refugee belonging to the first category may normally claim the benefit of Article 31 in the country where he finally arrives.”

He had addressed the meaning of “country of refuge” in volume I of the same work (1966), in which (para 108, p 301) he had written:

“As we see it, the ‘country of refuge’ (pays d'accueil), being the opposite of a ‘country of persecution', corresponds on the whole with the territory where Article 31 (1) of the Convention may be invoked. In other words, the ‘country of refuge’ will normally be the country into which a refugee is ‘coming directly from a territory where [his] life or freedom was threatened in the sense of article 1’ (or in which he becomes a refugee sur place).

However, in practice the provisions of Article 31 are given a liberal interpretation, so that a person may actually travel through several countries until he eventually applies for asylum and recognition as a refugee in a country more or less of his choice, and may still get the benefit of those provisions. The implication is that if the refugee had ended his journey in any of the transit countries, he would have been able to invoke Article 31 (1) there, too.”

13.  The opinion of the Office of the UNHCR to which Grahl-Madsen refers in the first of these quoted extracts is a matter of some significance, since by article 35 of the Convention member states undertake to co-operate with the Office in the exercise of its functions, and are bound to facilitate its duty of supervising the application of the provisions of the Convention. In 1992 the UNHCR in its Handbook on Procedures and Criteria for determining Refugee Status published guidelines with regard to the detention of asylum seekers, quoted by Simon Brown LJ in R v Uxbridge Magistrates’ Court, Ex p Adimi [2001] QB 667, 678. These guidelines, re-published without alteration of this provision in February 1999, included the following passage:

“The expression ‘coming directly’ in Article 31(1), covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection, safety and security could not be assured. It is understood that this term also covers a person who transits an intermediate country for a short period of time without having applied for, or received, asylum there. No strict time limit can be applied to the concept ‘coming directly’ and each case must be judged on its merits.”

14.  The judgment of the Queen’s Bench Divisional Court (Simon Brown LJ and Newman J) in Adimi related to three applicants for judicial review, two of whom were in transit through this country and one of whom (Mr Sorani) was in a factual position legally indistinguishable from that of the appellant. The court noted (pp 676, 677) that until the point was raised on behalf of Mr Adimi (p 674) the immunity required by article 31 had never been the subject of consideration by the Secretary of State for the Home Department, the Director of Public Prosecutions, the Crown Prosecution Service, the police or, it seems, anyone else. But that group of cases called for it to be considered, with reference in two of the cases to refugees, or potential refugees, in transit.

15.  In his leading judgment Simon Brown LJ first considered the requirement that, to qualify for immunity under article 31, a person must be “coming directly” from the country of persecution. The Secretary of State and the Director contended that article 31 allowed the refugee no element of choice as to where he should claim asylum. Having considered the conclusions of the UNHCR’s executive committee and the academic literature, Simon Brown LJ rejected that contention. He held (p 678) that some element of choice was open to refugees as to where they might properly claim asylum and concluded that any merely short-term stopover en route to such intended sanctuary could not deprive the refugee of the protection of article 31. He went on to say that the main touchstones by which exclusion from protection should be judged were the length of the stay in the intermediate country, the reasons for delaying there and whether or not the refugee sought or found there protection de jure or de facto from the persecution which the refugee was seeking to escape. These latter considerations have been said (Hathaway, The Rights of Refugees under International Law, (2005), p 399, f.n. 539) to be more properly relevant to “good cause", but they are clearly relevant to the applicability of article 31.

16.  Simon Brown LJ then considered (p 679) the requirement that refugees should present themselves “without delay". The respondents contended that Mr Adimi fell outside article 31 because he had not claimed asylum on reaching passport control. This argument was rejected (p 679): if Mr Adimi’s intention was to claim asylum within a short time of his arrival even if he had successfully secured entry on false documents, he was not in breach of this condition.

17.  The “good cause” condition was agreed by all counsel (p 679) to be satisfied by a genuine refugee showing that he was reasonably travelling on false papers.

18.  Simon Brown LJ considered the two applicants who had been in transit at p 687 of his judgment:

“I propose to deal with these two applicants together since both were arrested as transit passengers embarking for Canada and, in my judgment, no material distinction can be drawn between them. I use the term transit passenger here not in a technical sense to mean only passengers who throughout have remained airside of United Kingdom immigration control (even then, if discovered with false documents, they will be brought landside for that reason) but rather to mean passengers who have been in the United Kingdom for a limited time only and are on the way to seek asylum elsewhere. I understand the respondents to argue that such passengers can never be entitled to article 31 immunity because, having been apprehended whilst attempting to leave the United Kingdom rather than enter it, it follows that they never intended to present themselves, least of all without delay, to the immigration authorities here. Mr Kovats further submits that, having chosen not to claim asylum here despite the United Kingdom clearly being a safe country for the purpose, these passengers will in addition be unable to satisfy the coming directly condition.

Neither of these arguments are in my judgment sustainable. If I am right in saying that refugees are ordinarily entitled to choose where to claim asylum, and that a short term stopover en route in a country where the traveller’s status is in no way regularised will not break the requisite directness of flight, then it must follow that these applicants would have been entitled to the benefit of article 31 had they reached Canada and made their asylum claims there. If article 31 would have availed them in Canada, then logically its protection cannot be denied to them here merely because they have been apprehended en route.”

Newman J (p 688) agreed with Simon Brown LJ’s interpretation of the scope of article 31(1) of the Convention. Neither the Secretary of State nor the Director argued that article 31 was inapplicable to offences committed by a refugee seeking to leave the country as distinct from entering or being here.