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

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19.  On 8-9 November 2001 an expert round-table conference was held in Geneva, attended by representatives of different countries and disciplines, including six governmental members, to discuss article 31. For this Professor Goodwin-Gill wrote the paper cited in para 11 above, in which he described Simon Brown LJ’s judgment in Adimi as (p 203) “one of the most thorough examinations of the scope of Article 31 and the protection due". He drew on an extensive survey of state practice (p 206). On p 216 he opined:

“Although States may and do agree on the allocation of responsibility to determine claims, at the present stage of legal development, no duty is imposed on the asylum seeker travelling irregularly or with false travel documents to lodge an asylum application at any particular stage of the flight from danger.”

He concluded (p 218) that

“Refugees are not required to have come directly from their country of origin. Article 31 was intended to apply, and has been interpreted to apply, to persons who have briefly transited other countries, who are unable to find protection in the first country or countries to which they flee, or who have ‘good cause’ for not applying in such country or countries.”

In its “Summary of Conclusions” (Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Feller, Türk and Nicholson (eds), 3.2, p 255) the expert round-table listed a number of specific considerations which included the following:

“10.  In relation to Article 31(1):

(a)  Article 31(1) requires that refugees shall not be penalized solely by reason of unlawful entry or because, being in need of refuge and protection, they remain illegally in a country.

(b)  Refugees are not required to have come directly from territories where their life or freedom was threatened.

(c)  Article 31(1) was intended to apply, and has been interpreted to apply, to persons who have briefly transited other countries or who are unable to find effective protection in the first country or countries to which they flee. The drafters only intended that immunity from penalty should not apply to refugees who found asylum, or who were settled, temporarily or permanently, in another country. The mere fact of UNHCR being operational in a certain country should not be used as a decisive argument for the availability of effective protection in that country.”

20.  In his recent work The Rights of Refugees under International Law (2005), Professor Hathaway comments adversely (p 372, f.n. 412) on the UK’s prosecution of asylum-seekers transiting through the country en route to North America, and expresses the opinion (p 406) that international law provides no sanction for the UK’s policy of pursuing criminal charges against refugees found to have used false papers to pass through its territory. He quotes with implicit approval (p 406, f.n. 566) Simon Brown LJ’s observation in Adimi (pp 684-685) that the “respondents’ argument provides no justification whatever for prosecuting refugees in transit".

21.  In a memorandum submitted to the House of Commons Select Committee dated 1 December 2005 the UNHCR submitted (para 13):

“In granting this protection from penalization, Article 31(1) recognises, inter alia, that departure and entry into host countries by irregular means may be a method used by refugees fleeing persecution to reach safety as refugees are often forced to flee their own country in fear of their lives. In UNHCR’s view, a purposive interpretation of Article 31 will also include situations where a person seeking international protection arrives in the UK by irregular means without a valid travel document; whether with a false passport, a passport he/she is not entitled to or without a passport. Refugees and asylum seekers in transit to a final destination country could equally benefit from Article 31 of the 1951 Convention, if all the conditions of Article 31 are met.”

22.  On 14 February 2005, when the appellant presented a false Italian passport to Mohammed Hussan at the check-in desk she was a refugee within the Convention definition, as accepted at the criminal trial and now recognised by the Secretary of State. It has never been questioned, despite her brief stopover somewhere in the Middle East, that she was coming directly from the country where she had been persecuted. The jury accepted that she had, when challenged, presented herself to the authorities and that she had good cause for resorting to forgery and deception in the course of her flight from persecution. It seems to me that Adimi is fully supported by such authority as there is, both before and since, and was rightly decided. The UNHCR, who has intervened in this appeal and made most valuable submissions, strongly so submits. On the facts of this case, as now established, the appellant should not in my opinion, consistently with article 31, have been subjected to any criminal penalty on either count of the indictment preferred against her.

Section 31

23.  The decision in Adimi exposed a serious lacuna in our domestic law, which failed to give any immunity against criminal penalties in accordance with article 31. Steps were hastily taken to make good the omission, by enactment of section 31 of the Immigration and Asylum Act 1999. This section as amended now provides:

Defences based on Article 31(1) of the Refugee Convention

31 (1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he—

(a)  presented himself to the authorities in the United Kingdom without delay;

(b)  showed good cause for his illegal entry or presence; and

(c)  made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

(2)  If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.

(3)  In England and Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under—

(a)  Part 1 of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);

(aa)  section 25(1) or (5) of the Identity Cards Act 2006;

(b)  section 24A of the 1971 Act (deception); or

(c)  section 26(1)(d) of the 1971 Act (falsification of documents).

(4)  In Scotland, the offences to which this section applies are those—

(a)  of fraud,

(b)  of uttering a forged document,

(ba)  under section 25(1) or (5) of the Identity Cards Act 2006,

(c)  under section 24A of the 1971 Act (deception), or

(d)  under section 26(1)(d) of the 1971 Act (falsification of documents),

and any attempt to commit any of those offences.

(5)  A refugee who has made a claim for asylum is not entitled to the defence provided by subsection (1) in relation to any offence committed by him after making that claim.

(6)  'Refugee’ has the same meaning as it has for the purposes of the Refugee Convention.

(7)  If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.

(8)  A person who—

(a)  was convicted in England and Wales or Northern Ireland of an offence to which this section applies before the commencement of this section, but

(b)  at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),

may apply to the Criminal Cases Review Commission with a view to his case being referred to the Court of Appeal by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.

(9)  A person who—

(a)  was convicted in Scotland of an offence to which this section applies before the commencement of this section, but

(b)  at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),

may apply to the Scottish Criminal Cases Review Commission with a view to his case being referred to the High Court of Justiciary by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.

(10)  The Secretary of State may by order amend—

(a)  subsection (3), or

(b)  subsection (4),

by adding offences to those for the time being listed there.

(11)  Before making an order under subsection (10)(b), the Secretary of State must consult the Scottish Ministers.”

24.  When the Bill which became the 1999 Act was before Parliament, the Divisional Court judgment in Adimi loomed largely in the discussion (see Hansard, HL, 18 October 1999, cols 844, 845, 848, 849, 850, 851, 852, 856, 857, 2 November 1999, col 784). A number of statements made by the Attorney General on behalf of the Government were relied on in argument. The Government wanted an outcome which properly accommodated article 31(1) asylum seekers and the difficulties raised by Simon Brown LJ (18 October, col 855). It was hoped to achieve this and avoid inappropriate prosecutions by giving administrative guidance to the prosecuting authorities (18 October, cols 855, 856) but if such prosecutions did occur the defence would exist (18 October, col 857). This was an appropriate and generous response and solution to difficult problems (18 October, col 857). On 2 November 1999, when the clause which became section 31 was (before amendment) introduced, the Attorney General said (col 784) that the purpose of the clause was to ensure that someone who came within article 31(1) of the Convention was properly protected and did not have a penalty imposed on him on account of his illegal entry or presence. He referred again to the administrative steps taken to identify article 31(1) issues at an early stage. In relevant cases therefore the matter would never come to court. Sometimes the administrative procedures would fail, and the defence was a further safeguard. He acknowledged as an addition the requirement in subsection (1) that a person should have applied for asylum as soon as was reasonably practicable, which he considered a fair addition. This was a narrower definition than that adopted by the Divisional Court, but he thought the Government was entitled to take its own view, and it had taken a different view. This did not mean (col 785) that every refugee who passed through a third country would be prosecuted, which did not and would not happen. There should be a limit on “forum shopping", deciding to accept an offer of safety in country B or C, but not in country A. The definition of “coming directly” was a generous one. There had to come a time when an individual stopped running away, the article 31 situation, and started to travel towards a preferred destination. The Attorney General believed that the Government had got it right, but if the list of offences in subsections (3) and (4) needed to be added to, this could be done by order.

25.  It is clear that in one respect, expressed in section 31(2), it was intended to depart from Adimi. Whether that subsection is consistent with the Convention, interpreted in the light of the travaux, may be open to question, but it is not a question which arises in this case, since it has never been suggested that in coming from Ethiopia the appellant stopped in any country outside the UK where she could reasonably have been expected to be given protection under the law of that country. Subsection (2) apart, no indication was given of an intention to depart from Adimi. More importantly, no indication was given of an intention to derogate from the international obligations of the UK as fully expounded in Adimi, as would be expected if that was the legislative intention. The indication was, rather, of an intention to reflect in statute the obligations undertaken by the UK in the Convention.

26.  I am of opinion that section 31 should not be read (as the respondent contends) as limited to offences attributable to a refugee’s illegal entry into or presence in this country, but should provide immunity, if the other conditions are fulfilled, from the imposition of criminal penalties for offences attributable to the attempt of a refugee to leave the country in the continuing course of a flight from persecution even after a short stopover in transit. This interpretation is consistent with the Convention jurisprudence to which I have referred, consistent with the judgment in Adimi, consistent with the absence of any indication that it was intended to depart in the 1999 Act from the Convention or (subject to the exception already noted) Adimi, and consistent with the humanitarian purpose of the Convention. It follows that the jury in the present case, on finding the conditions in section 31 to be met, were fully entitled to acquit the appellant on count 1, as the respondent then accepted, even though the offence was committed when the appellant was trying to leave the country after a short stopover in transit.

27.  That result follows because the offence in count 1 was charged in Part 1 of the Forgery and Counterfeiting Act 1981, an offence covered by section 31(3)(a).

28.  The offence in count 2, although within article 31 on my analysis and that accepted by both parties in the Court of Appeal, is not listed expressly in section 31(3). The list in that subsection is in some respects perplexing, since it does not (as one might expect) include an offence of illegal entry contrary to section 24 of the Immigration Act 1971 and there is no close correspondence between the offences listed in subsection (3), which do not include that charged in count 2, and those listed in subsection (4) which, as I understand, would cover the substance of that count, had the alleged offence been committed in Scotland. As matters stand, however, there is a disparity between the scope of article 31 and the scope of section 31(1) and (3), and by no legitimate process of interpretation can those subsections be read as including the offence charged in count 2.

29.  The appellant sought to address this disparity by submitting that the Convention had been incorporated into our domestic law. Reliance was placed on observations of Lord Keith of Kinkel in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958, 990G; Lord Steyn in R (European Roma Rights Centre and others) v Immigration Officer at Prague Airport and another (United Nations High Commissioner for Refugees Intervening) [2004] UKHL 55, [2005] 2 AC 1, paras 40-42; section 2 of the Asylum and Immigration Appeals Act 1993; and para 328 of Statement of Changes in Immigration Rules (HC 395). It is plain from these authorities that the British regime for handling applications for asylum has been closely assimilated to the Convention model. But it is also plain (as I think) that the Convention as a whole has never been formally incorporated or given effect in domestic law. While, therefore, one would expect any government intending to legislate inconsistently with an obligation binding on the UK to make its intention very clear, there can on well known authority be no ground in domestic law for failing to give effect to an enactment in terms unambiguously inconsistent with such an obligation.

30.  The appellant sought to assert that she had a legitimate expectation that the UK would honour its obligation under article 31 of the Convention. But she cannot, at the relevant time, have had any legitimate expectation of being treated otherwise than in accordance with the 1999 Act. Nor can the criminal defence of necessity be stretched to cover this case.

31.  The appellant also submitted that it was an abuse of the criminal process to prosecute her to conviction under count 2. That submission calls for closer consideration. It was not an abuse to prefer charges under both counts, since the respondent was entitled to question whether the appellant was a refugee, and if she was not neither the article nor the section could avail her. It is true that the two counts related to identical conduct and the second count served no obvious purpose, but the court could ensure, on conviction, that no disproportionate penalty was inflicted. If, however, the second count was included in the indictment in order to prevent the appellant from relying on the defence which section 31 would otherwise provide, I would share the Court of Appeal’s view (para 24) that there would be strong grounds for contending that this was an abuse of process. It is not at all clear what legitimate purpose was sought to be served by including the second count, and it must be questioned whether there was any legitimate purpose.

32.  In rejecting the appellant’s objection to count 2 the learned judge was following authority binding on him: see R (Pepushi) v Crown Prosecution Service [2004] 798 (Admin). But there is an obvious inconsistency between his grounds for rejecting that objection and his direction to the jury (see paras 5 and 6 above). His grounds for dismissing the appellant’s objection was also, in my opinion, wrong, since if the jury were to acquit the appellant on count 1 in reliance on section 31, it would be both unfair and contrary to the intention of the statute to convict her on count 2. The Attorney General expressly recognised that additional offences might have to be added to section 31(3), and when such offences, requiring addition to the list, arose in individual cases it would plainly be necessary to avoid injustice in those cases. There was in my opinion a clear risk of injustice in this case if the jury were to acquit on count 1 but convict on count 2.

33.  The trial judge cannot of course be criticised for acting in accordance with binding authority, incoherent though (on his interpretation) the outcome was. It is, however, apparent that counsel’s preliminary objection to count 2 could only, consistently with article 31 and the intention of section 31, have been fairly met by staying further prosecution of count 2 at that stage. If the jury acquitted the appellant on count 1, the stay on prosecuting count 2 should have been maintained. If the jury convicted the appellant on count 1, rejecting her section 31 defence, there would have been no objection in principle to further prosecution of count 2. But the appellant would be likely in that situation to have pleaded guilty (as she did in response to the judge’s ruling), and the question would arise whether further prosecution of count 2 could be justified: given that the judge had power to sentence the appellant to imprisonment for 10 years on count 1, it could scarcely be suggested that his powers of punishment were inadequate to reflect the appellant’s culpability.

34.  The Court of Appeal expressed its concern about this case by allowing the appellant’s appeal against sentence and ordering that she be absolutely discharged. But in my opinion it was an abuse of process in the circumstances to prosecute her to conviction. On 14 February 2005 the appellant was, in the Attorney General’s expressive phrase, “still running away” from persecution. Once that was established, count 2 being factually indistinguishable from count 1, she should not have been convicted at all. I would accordingly allow the appeal, quash the appellant’s conviction and invite the parties (other than the intervener) to make written submissions on costs within 14 days.


My Lords,

35.  The issues raised by this case fall conveniently into two parts. The first is whether the appellant was entitled to the protection of article 31(1) of the 1951 Convention and Protocol relating to the Status of Refugees. The second is whether she had a defence under section 31 of the Immigration and Asylum Act 1999 to the charge of attempting to obtain services by deception contrary to section 1(1) of the Criminal Attempts Act 1981, notwithstanding the fact that this is not one of the offences specified in section 31(3) of the 1999 Act as those to which a defence under that section is available.

36.  Before I examine these two issues I should like to say something about the circumstances in which the appellant came to be charged with the offence under section 1(1) of the 1981 Act. It has to be acknowledged at the outset that this is not the type of case that was in the forefront of the minds of the framers of the Convention in 1950 when article 31 was being formulated. Their concern was to protect refugees who were coming to the territory of a contracting state. In this case the fact that the appellant was travelling on a false Ethiopian passport was not detected when she entered this country at Heathrow Airport. She was detected when she was attempting to leave this country from the same airport with a false Italian passport later the same day. The question which lies at the heart of the first issue is whether she was entitled to the protection of article 31(1) against the imposition of a penalty on account of her attempt to leave the country illegally, not to enter it.

The facts

37.  The current practice is for passengers departing on international flights to be asked to present their passports at the airline’s check-in desk when they are checking in for the flight which they intend to take, and for their passports to be examined again at the departure gate. This is because airlines are exposed to substantial penalties if they carry passengers to a country which they will not be permitted to enter because they have no valid passport or its visa requirements are not satisfied. The Immigration (Carriers’ Liability) Act 1987 requires carriers to make payments to the Secretary of State in respect of passengers brought by them by ship or aircraft to the United Kingdom without proper documents, currently amounting to £2,000 per passenger. (The 1987 Act was repealed by the Immigration and Asylum Act 1999, section 169(3) and Schedule 16 as from a date to be appointed, and replaced by a new system of carriers’ liability under sections 40 and 42. But no date for the taking effect of these provisions has yet been appointed.) Carriers who carry passengers from the United Kingdom without proper documents are exposed to similar sanctions in the countries to which they are travelling.

38.  The appellant’s attempt to leave the country with a false passport was detected when the first opportunity arose for her passport to be examined to avoid incurring this liability, which was at the Virgin Atlantic check-in desk. Information was passed to the police and she was arrested when, after passing through security and passport control, she reached the departure gate. The obstacle which she encountered was one that can be expected to confront all refugees who are in transit by air through Gatwick or Heathrow from a territory where their life or freedom was threatened to the country where they intend to seek asylum.

39.  Heathrow Airport, where this incident took place, is one of the busiest airports in Europe. One of the reasons why it attracts so much business is that it serves so many destinations. Many of the passengers who use it are in the course of travel from places both within and outside Europe to destinations in North America. Usually changing from one flight to another while in transit can be done without having to enter the United Kingdom. But this may not always be possible. Refugees whose movements and documents have been prepared for them by their couriers may not be able to avoid doing so. Even if they can, they will still face the problem of having to present their passports for examination by the airline at the departure gate before they are permitted to board the aircraft. In R v Uxbridge Magistrates’ Court, Ex p Adimi [2001] QB 667, 674B-C Simon Brown LJ observed that the combined effect of visa requirements and carriers’ liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents. The barrier to onward travel which faces passengers in possession of false passports or other travel documents is one which every refugee is likely to encounter while in transit to North America through any of Europe’s principal international airports.

40.  The situation which I have described is unlike that with which the framers of the Convention were familiar in 1950. Transfers from one vehicle to another have, of course, been part of travel from time immemorial. But the journey which the respondent was taking when she was at Heathrow had some significant features that are the product of more recent developments. Transatlantic travel in the early 1950s was almost always by ship. And it was for the few, before the introduction of suitable aircraft made international air travel over long distances accessible to everyone. The significant increase in air travel that resulted from the use of such aircraft led to the practice of permitting passengers to transfer from one flight to another without requiring them to enter the country in which the airport where the transfer was to take place was situated. Then came the prospect of the imposition of financial penalties under carrier sanctions legislation in the United Kingdom and North America.

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