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

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41.  In R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Commissioner for Refugees intervening) [2005] 2 AC 1, para 28 Lord Bingham of Cornhill quoted a passage from an article published in 1998 (“United Kingdom: Breaches of article 31 of the 1951 Convention” (1998) 10 Int J Refugee Law 205, 209-210) in which Richard Dunstan, formerly Refugee Officer, Amnesty International United Kingdom, provided this description of the practice that many leading countries have adopted:

“In recent years, and in common with many other western countries, the United Kingdom, Canada and the United States have imposed visa regimes on nationals of practically all significant refugee-producing countries, in an apparent attempt to reduce the number of would-be asylum-seekers from such countries arriving at their borders. These visa regimes have then been enforced by the imposition of heavy financial penalties on those transport operators bringing passengers lacking a valid visa where one is required. For example, under the Immigration (Carriers’ Liability) Act 1987, the United Kingdom authorities impose a financial penalty of £2,000 per passenger brought without either a valid passport or a visa where one is required. Introducing this legislation in March 1987, the then Home Secretary, Douglas Hurd, stated that ‘the immediate spur to this proposal has been the arrival of over 8,000 people claiming asylum in the three months to the end of February 1987.’ Between May 1987 and October 1996, fines totalling £97.6 m were imposed on over 440 airlines and shipping companies. The United Kingdom authorities have also provided training, advice and technical support in respect of the detection of false travel documents to airline staff based at various points of embarkation….

“Similarly, in the United States a financial penalty of US$3,000 per improperly-documented passenger may be imposed under section 273 of the Immigration and Nationality Act 1952, the penalty having been increased from US$1,000 in 1990. And in Canada a financial penalty of up to CAN$ 3,200 per improperly-documented passenger may be imposed under the Immigration Act 1976, as amended. As long ago as 1986, a total of 541 airlines were each fined CAN$1,000 by the Canadian authorities for not demonstrating sufficient vigilance in their checking of passengers’ travel documents.”

The practice of imposing liability on carriers has been adopted by most European countries too. A study conducted for the European Council on Refugees and Exiles, “Carriers’ Liability: Country up-date on the application of carriers’ liability in European States", published in February 1999, showed that all states parties to the Schengen Convention, plus Norway and Iceland, who had concluded a parallel convention, had introduced a system of carriers’ liability.

42.  It can be assumed therefore that the incident at the Virgin Atlantic check-in desk was the product of demands made on the airline by the country of destination, not the country of departure. Formerly passport controls on exit were comparatively relaxed. The emphasis was on controls on entry. Now the controls on exit which are imposed by the carrier are diligently exercised. It is significant that the fact that the appellant was attempting to travel on a false passport was detected by the airline’s security official at the check-in desk. She then passed through passport control to departures apparently without incident before she was stopped by the police, who had been alerted by the security official, at the departure gate.

Article 31 of the Refugee Convention

43.  Article 31 is headed “Refugees unlawfully in the country of refuge". Its purpose is to exempt illegally entering refugees from penalties. The need for protection of this kind was first observed by the 1950 Ad Hoc Committee on Statelessness and Related Problems which prepared the draft Convention. It noted in its draft report that a refugee, whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry into the country of refuge: Refugee Protection in International Law, ed Feller, Türk and Nicholson (2003), p 190. After further discussion and negotiation article 31(1), which was not among the texts considered by the Ad Hoc Committee, was included in the Convention. It provides:

“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 authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

44.  The phrase “on account of their illegal entry or presence” appears to limit the situations to which the protection of the article can apply. As I have already mentioned, the fact that the appellant was travelling on a false passport was not detected when she entered this country from somewhere in the Middle East. This did not happen until about an hour later when, having been provided by her agent with further travel documents, she presented her false Italian passport at the check-in desk. Her offences were committed while she was still present in this country. But they were not committed with a view to persuading the authorities that she should be allowed to remain here. They were committed with a view to her being permitted by the airline to continue her journey to Washington. The way her agent dealt with her made it necessary for her to pass through passport control on her arrival at Heathrow to check in for her onward flight to Washington. But she was in reality a passenger who was in transit. Her entry to this country was purely incidental to the journey to the United States which she was still engaged in when she was arrested.

45.  There is no indication in the travaux préparatoires that any of the plenipotentiaries who met in Geneva in 1951 had in mind the position of refugees who were still in transit to another country when their illegal presence was detected. The position of refugees passing through intermediate countries to the state of refuge was referred to. But this was in the context of illegal entry to or presence in the country of refuge. The wording of the original version of article 31(1) was amended to meet an objection by the French representative that France could not bind itself as a country of second reception to accept refugees coming through intermediate countries. This objection was met by the French amendment, which addressed the problem of defining what might constitute good cause for their illegal entry into or presence in the country of refuge. There is no indication that it was the intention that refugees should be denied protection if their illegal presence happened not to be detected until they were on the point of departure from the country where, in the event, they decided to seek refuge.

46.  In his commentary on article 31 in The Refugee Convention 1951 with travaux préparatoires, p 279, Dr Paul Weis, said that it would be in keeping with the notion of asylum to exempt from penalties a refugee, escaping from persecution, who after crossing the frontier clandestinely presented himself as soon as possible to the authorities of the country of asylum and was recognised as a bona fide refugee. The generality of Dr Weis’s comment suggests that all refugees escaping persecution who, having crossed the frontier, are still in the country and satisfy this requirement are entitled to the exemption from penalties. But the context for his remark shows that the penalties that he had in mind were those associated with illegal entry, not with illegal exit while in transit to another country.

47.  Your Lordships have not been provided with any evidence that article 31(1) was being interpreted judicially as extending to situations of this kind until R v Uxbridge Magistrates’ Court, Ex p Adimi [2001] QB 667. Judgment in that case was delivered on 29 July 1999. Two of the applicants in that case, Mr Sorani and Mr Kaziu, were in transit when they presented false documents at Heathrow while attempting to board flights to Canada. At p 677H Simon Brown LJ said that he regarded as helpful Newman J’s suggestion that the illegal entry or use of false documents which could be attributed to a bona fide desire to seek asylum “whether here or elsewhere” should be covered by the article. At p 687F-G he said that, as the applicants would have been entitled to the benefit of article 31(1) had they reached Canada, logically its protection could not be denied to them in this country merely because they had been apprehended en route. In R (Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin), para 15 the Divisional Court said that it seemed to it, in the light of the brief argument that had been addressed to it on this point, that Adimi was rightly decided.

48.  In a Memorandum of Good Practice endorsed by the Association of Chief Police Officers, the Immigration and Nationality Directorate, the Crown Prosecution Service and the Law Society representing defence solicitors (third draft, 8 March 2000), it was recognised that criminal offences giving rise to the question whether the protection afforded by article 31(1) was available might be committed by persons entering, departing from or in transit via the United Kingdom: para 3.1. The advice that the defence might be available was put into practice in this case. The appellant, a transit passenger, was permitted to take advantage of the statutory defence based on article 31(1) in regard to the first count on the indictment without objection from the prosecutor. It was only when the case reached this House that the defence was called into question by the respondent on the ground that the appellant’s conduct was outside the scope of article 31(1).

49.  Miss Montgomery QC submitted that the analysis in Adimi did not give sufficient weight to the restriction that the words “illegal entry or presence” impose on the scope of article 31(1). She said that there was nothing illogical in denying its protection to a person seeking to leave for a foreign state even though, upon arrival in that foreign state, he would be entitled to it. This was because the wording of the article suggests that it is concerned to protect refugees solely against offences arising from conduct involved in their illegal entry or presence in the state where they are detected. Nevertheless, there are indications that Simon Brown LJ’s view that refugees are entitled to the protection of article 31(1) while in transit has been welcomed by academics and by the UNHCR as falling within the spirit of the article.

50.  An expert roundtable organised by the UNHCR and the Graduate Institute of International Studies was held in Geneva in November 2001. The discussion was based on a background paper on article 31 by Guy Goodwin-Gill, Article 31 of the 1951 Convention relating to the Status of Refugees: non-penalisation, detention, and Protection, in Refugee Protection in International Law, ed Feller, Türk and Nicholson, at pp 185 - 252. The conclusions that were reached are set out at p 253 - 258 in the same volume. They include the following, at p 255:

“10. In relation to Article 31(1) …

(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 were settled, temporarily or permanently, in another country. The mere fact of UNCHR being operational in a certain country should not be used as a decisive argument for the availability of effective protection in that country.

(d) The intention of the asylum seeker to reach a particular country of destination, for instance for family reunification purposes, is a factor to be taken into account when assessing whether s/he transited through or stayed in another country.”

These conclusions support the view that asylum seekers who were in transit when passing through other countries before they reached the country where they have claimed asylum are entitled to the protection of the article. But they do not deal directly with the situation where the offence was committed while the asylum seeker was attempting to leave with a view to claiming asylum somewhere else. Article 2 obliges every refugee to conform to the laws and regulations of the country in which he finds himself. But Miss Montgomery did not suggest that this article deprived asylum seekers who were in transit of the benefit of article 31(1) and I, for my part, do not think that it does.

51.  Comments that are more directly in point are to be found in The Rights of Refugees under International Law (2005) by James C Hathaway. At p 406 he said that it was apparent that many refugees needed to cross borders clandestinely in order to access protection. So long as a refugee’s failure to present valid travel documents was purely incidental to his or her flight from the risk of being persecuted, he should not be sanctioned for illegal entry. He then added this comment:

“Nor does international law sanction the United Kingdom’s policy of pursuing criminal charges against refugees found to have used false documents to pass through its territory. As an English court has observed, the right of refugees to breach migration control laws in search of protection means that the propriety of prosecution for such matters by a transit state is particularly doubtful.”

A footnote to this passage explains that it is based on comments by Simon Brown LJ in R v Uxbridge Magistrates’ Court, Ex p Adimi [2001] QB 667, and on a passage in Guy Goodwin-Gill’s background paper on article 31 at pp 216-217 where he states that if a state initiates action within its territory to deal generally or internationally with the use of false travel documents, then that state, rather than the state of intended destination, assumes the responsibility of ensuring that the refugee benefits from the provisions of the Convention, such as article 31, which are not dependent upon lawful presence or residence: Refugee Protection in International Law, ed Feller, Türk and Nicholson, pp 216-217.

52.  The UNHCR made written submissions in support of the applicants in Adimi who were arrested as transit passengers while they were attempting to board flights for Canada with the intention of seeking asylum there, Mr Sorani and Mr Kaziu. It said that UNHCR considered that their prosecution for possession of false documents in such a situation constituted prosecution for their illegal presence in the United Kingdom, contrary to article 31(1). In a Memorandum submitted to the Select Committee on Home Affairs dated 1 December 2005, para 13, UNHCR repeated its view that refugees and asylum seekers in transit to a final destination country could equally benefit from article 31 of the Convention if all the conditions of that article were met.

53.  As a general rule it is desirable that international treaties should be interpreted by the courts of all states parties uniformly: R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 657B. So if it could be said that a uniform interpretation was to be found in the authorities, it would be appropriate for the courts of this country to follow it. It is plain from the material that is before your Lordships that the situation in this case falls far short of that ideal. The travaux préparatoires are uninformative, and there is an absence of relevant judicial authority other than the dicta in R v Uxbridge Magistrates’ Court, Ex p Adimi. As for the rest, while weight must be attached to the views of UNHCR in the light of its functions under article 35 of the Convention and to those of academics who specialise in this field, their assertions appear never to have been tested judicially elsewhere in the courts of the states parties.

54.  In this situation, as in Shah, I suggest that the best guide is to be found in the evolutionary approach that ought to be taken to international humanitarian agreements. It has long been recognised that human rights treaties have a special character. This distinguishes them from multilateral treaties that are designed to set up reciprocal arrangements between states. Humanitarian agreements of the kind to which the Convention belongs are entered into for a different purpose. Their object is to protect the rights and freedoms of individual human beings generally or falling within a particular description. As Judge Weeramantry said in Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (1996) 115 ILR 1, 57, they represent a commitment of the states parties to certain norms and values recognised by the international community.

55.  In Shah’s case the problem was whether Pakistani women accused of adultery were a “particular social group” within the meaning of article 1A(2) of the Refugee Convention. Lord Hoffmann said at p 651C-D that the concept was a general one and that its meaning could not be confined to those social groups which the framers of the Convention may have had in mind. In this case a meaning has to be given to the words “on account of their illegal entry or presence” in article 31(1) which identify the type of penalties that the contracting states are not to impose on refugees who satisfy the requirements of the article. I would not confine the meaning of that expression to the particular situations that the framers had in mind in this case either. The overall context is provided by the preamble to the Convention. It refers to the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. It states that

“the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms".

This is an indication that a generous interpretation should be given to the wording of the articles, in keeping with the humanitarian purpose that it seeks to achieve and the general principle that the Convention is to be regarded as a living instrument.

56.  The single most important point that emerges from a consideration of the travaux préparatoires is that there was universal acceptance that the mere fact that refugees stopped while in transit ought not deprive them of the benefit of the article. The phrase “coming directly", if read literally, would have that effect. But, as Dr Weis noted in The Refugee Convention 1951, p 310, the UK representative said that these words, which appeared for the first time in his suggested amendment, would allow for a certain amount of flexibility in the case of refugees coming through intermediary countries. They were then incorporated in the French amendment, which was adopted by a large majority. Lord Williams of Mostyn acknowledged this point when he said during the Third Reading in the House of Lords of the Bill which became the 1999 Act that, as he had already observed on Report, the definition of “coming directly” was a generous one: Hansard (HL) 2 November 1999, col 785. It is hard, then, to see why the fact that the refugees are still in transit should be ignored when the question arises whether they are entitled to the protection of the article. Lord Williams said that a time must come when they have stopped running away, which he described as the article 31(1) situation. But, on the facts of this case, the appellant had not stopped running when she was arrested.

57.  Article 31(1) does not, of course, give the refugee a right to choose the country in which to seek asylum. So the United Kingdom was not in breach of it when the appellant’s wish to travel on to the United States was frustrated by her arrest at the departure gate. But what article 31(1) does deal with is the issue of punishment. It deals with the situation where the question is whether refugees should be punished for offences committed while escaping from persecution by the use of false documents. It recognises that refugees, whose departure from their country of origin is usually a flight, are rarely in a position to comply with the requirements of legal entry to the country of refuge: Dr Weis, The Refugee Convention 1951, p 279. It was designed to protect refugees from punishment who resort to the use of false documents while they are still in flight to obtain entry to the country of refuge.

58.  The effect of the liability that the country of destination imposes on the carrier was that the false passport was detected in a country where the appellant was in transit, not in the country to which she was seeking entry. But it would be artificial in the extreme to deny her the protection to which she would have been entitled had she reached the United States just because she was detected at Heathrow before she boarded her flight to Washington. The situation is one where the United Kingdom, having asserted jurisdiction over her because she was present here, must assume responsibility for affording her the benefit of the article.

59.  For these reasons I consider that the appellant was entitled to rely on article 31(1) of the Refugee Convention to protect her from prosecution for seeking to use a false passport to leave the United Kingdom while she was still in transit to North America.

Section 31 of the 1999 Act

60.  The appellant was charged with two offences. The first was the using of a false instrument with the intention of inducing the security officer at the check-in desk to accept it as genuine, contrary to section 3 of the Forgery and Counterfeiting Act 1981. The second was the offence of attempting to obtain the services of air transportation from Virgin Atlantic by deception, contrary to section 1(1) of the Criminal Attempts Act 1981. She was permitted to rely at her trial on the defence provided for by section 31 of the 1999 Act in relation to the first charge, and she was acquitted. The judge refused to allow her to rely on the defence in relation to the second charge, whereupon she pleaded guilty and was sentenced to nine months imprisonment. The facts on which these two charges were based were indistinguishable. They arose out of precisely the same incident - the presentation of the false passport at the check-in desk. They were treated differently simply because the offence in count one is one of those listed in section 31(3) of the 1999 Act as those to which the section applies, whereas the offence in count two is not.

61.  The question which then arises is whether the omission from section 31(3) of section 1(1) of the Criminal Attempts Act 1981 was what Parliament intended or whether it was due to an oversight. The section itself provides grounds for thinking that the omission may have been due to an oversight. Section 31(3), which contains the list in question, applies to England and Wales and Northern Ireland. The list is in these terms:

“any offence, and any attempt to commit an offence, under

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

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

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

The 1971 Act is the Immigration Act 1971: 1999 Act, section 167(1). Section 31(4), which applies to Scotland, states that the offences to which the section applies are the following:

“(a) of fraud;

(b) of uttering a forged document; …

(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.”

62.  The offences of fraud and uttering listed under heads (a) and (b) in section 31(4) are common law crimes in Scotland. Part I of the Forgery and Counterfeiting Act 1981 does not extend to Scotland: section 31(1). The activities that are proscribed by it can be dealt with there under the common law. The Criminal Attempts Act 1981 does not extend to Scotland either: section 11(2). An attempt to commit a common law crime is an offence at common law in Scotland. If the appellant had been attempting to board a flight from Edinburgh or Glasgow to North America she could not have been charged with either of the offences listed in the indictment against her at Isleworth. Her case would probably have been dealt with on a single charge of attempted fraud by the Scottish prosecutor.

63.  It is often just a matter of convenience whether the charge in cases of this kind is framed in Scotland as one of uttering a forged document or as one of fraud. But in this case, as the appellant had reached the stage of attempting to obtain services by tendering the false passport, attempted fraud would probably have been regarded as the better alternative: Gordon, Criminal Law, 3rd ed (2001), para 18.35. The important point is that, on either alternative, in Scotland the defence under section 31 would have been available. The exact matching of statutory offences in England and Wales with common law crimes in Scotland is at best very difficult, and more often than not it is virtually impossible. But no sensible reason can be given for thinking that Parliament intended, in this context, that the same conduct on either side of the border should be treated differently.

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